Anderson v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|2000-12-05|Before: Finkelstein JJ

THE COURT: 1 The appellant applied for the grant of a protection visa on 28 April 1996. This type of visa is granted to a non-citizen to whom Australia has obligations under the Convention Relating to the Status of Refugees 1951 as amended bythe Protocol Relating to the Status of Refugees 1967 ("the Convention"): see s 36 of the Migration Act 1958 (Cth) ("the Act") and the definitions of Refugees Convention and Refugees Protocol in s 5(1). This application was refused on 30 June 1998, as a delegate of the respondent Minister was not satisfied that the appellant met the criteria for a protection visa. In particular, the delegate was not satisfied that the appellant was a refugee in accordance with the definition in the Convention. An application was made to the Refugee Review Tribunal ("the Tribunal") to review the decision of the delegate on 14 July 1998, but that decision was affirmed by the Tribunal on 1 February 2000. The appellant then sought review by this Court of the decision of the Tribunal under s 476 of the Act. That application was dismissed with costs on 28 June 2000. It is those orders that are now the subject of this appeal.

Appellant's claims 2 The appellant is a citizen of Sri Lanka. He claims to be a refugee because he has a well-founded fear of persecution for reason of his race (he claims that he is a Tamil Burger) and political opinion. 3 The appellant's account of the facts said to give rise to his fear can be stated shortly. The appellant is a Burgher, a minority ethnic group in Sri Lanka. Burghers have a close association with Tamils, including those who are engaged in the struggle against the government to establish an independent state in the northern and eastern provinces of Sri Lanka. This close association has made Burghers the object of persecution by both the Sinhalese majority and government forces. The position is worse in the case of the appellant and his family because they have many Tamil relatives, (hence the appellant's description of himself as a Tamil Burgher). For example, in both 1977 and 1983 members of the appellant's family were assaulted and the appellant's home was looted by Sinhalese, for saving Tamils. 4 Not only are Tamil Burghers the object of oppression, there are circumstances which make the position of the appellant particularly vulnerable. Those circumstances include the following. In 1984 the appellant accompanied his cousin, Jeyanthan, and his cousin's two friends, to a government office building in the belief that Jeyanthan and his friends were there to seek employment. Instead, Jeyanthan and the others allegedly kidnapped and later killed a customs officer. The appellant, fearing that he would be identified as having accompanied Jeyanthan to the place where the kidnapping took place, left the country for two years. On his return the appellant took up employment at a hotel where, in 1989, a bomb was found in a rubbish bin. The appellant was taken to the police station and questioned about the bomb but, with the intervention of his father, he was released. 5 In 1990, the appellant claimed that one of the appellant's cousins was arrested on suspicion of being a member of a Tamil separatist group. The appellant's father negotiated the release of this relative. His release was obtained on the condition that the relative report to the local police station each week. This condition was breached, resulting in police officers visiting the appellant's home and accusing him and his family of being associated with Tamil militants. The appellant's father bribed the officers to leave the family alone. 6 In 1992, while at a cinema, the appellant was arrested along with six other Tamil youths. He was taken to police headquarters and beaten. The appellant's father procured his release. The appellant then left Sri Lanka for a number of years, not returning until 1996. Shortly after his return there was a terrorist bombing at the Central Bank building in Colombo. Three days later, the appellant claimed Jeyanthan and six companions were arrested. At the time of their arrest they were in possession of firearms and ammunition. Presumably they were arrested on suspicion of being involved in the bombing. Tamil militants requested the appellant's father to secure the release of Jeyanthan, but he refused to help. The appellant's father was then required to pay 100,000 Rupees to the militants. 7 With the assistance of a travel agent the appellant together with his wife and child were able to flee to Australia. They arrived on 28 April 1996. Shortly after their arrival, the appellant's mother wrote to him expressing concern about the situation in Sri Lanka which she claimed was "getting bad to worse". She went on: "Last night three men came looking for you. They didn't identify themselves but asked daddy a lot of questions. I was feeling very scared, they were wearing something like uniforms, but I'm not sure who they are … Their language was threatening we too are scared & alone now." This letter was followed by another, dated 3 July 1996, which referred to a similar (perhaps the same) incident. Relevantly this letter said: "Three men came looking for you. They said they were from the CID around 9pm two days ago. They asked dad a lot of questions where you were and when we said you had left the Country for good they did not believe us. They said you joined the LTTE & when they saw Rani they asked for her ID Card & then put her into a Jeep & took her away. Son they looked in your cupboards removed all the drawers & turned your whole room upside down. They were very rude and did not care that we were old & alone. They had no respect for any living being. Even your wedding photograph with the frame & all your albums even the ones brought from Oman were taken away … We just do not know what will happen next. Now we live in fright. Son please I beg of you not to come down at least for the sake of Tarsha and Petrin as I really don't know what they want from you, they said that you are a traitor and a Demalaya & and that the Country is fighting a war & your son is helping the LTTE…"

The Tribunal's findings 8 The Tribunal rejected the appellant's claim for refugee status largely because it did not accept his evidence. 9 As to the assertion that he was a Tamil Burgher, the Tribunal said that this claim was "contrived" and that it would give it no weight. As to the claim that the appellant was believed to be a supporter of the Tamil separatists, and hence that their political opinions were imputed to him, the Tribunal rejected most of the evidence upon which this assertion was based. The claimed abduction which occurred in 1984 was said to "lack plausibility". Reasons were given. The claimed arrest in 1992 was said to be "implausible". Reasons were given. The suggestion that the appellant was questioned about the bomb left at the hotel was said to be "utterly implausible". The claimed arrest of Jeyanthan in 1996 was not accepted because there was no corroborative evidence. In short, the Tribunal did not find the appellant to be a truthful witness. 10 The appellant says that the Tribunal's decision is vitiated by error in two respects. First, the appellant claims that the Tribunal's reasons for decision do not satisfy the requirements of s 430 of the Act, in that those reasons failed to set out findings on material questions of fact. The second alleged error is that the Tribunal failed to consider whether the appellant and his family were imputed with an opinion favourable to Tamils generally or the Liberation Tigers of Tamil Eelan (LTTE) in particular because of their association with Tamils. To raise the second error the applicant seeks leave to amend his notice of appeal.

Failure to observe procedures 11 The grounds addressed in relation to a failure to observe procedures pursuant to s 430(1)(c) of the Act, rely on the alleged failure by the Tribunal to make findings regarding two letters sent to the appellant in Australia by his relatives in Sri Lanka. 12 This is not a case where the Tribunal has failed to refer to letters having the relevance contended for. Under a heading in its reasons reading "Documents submitted in support of the application" the Tribunal described the two letters as follows:

"1. The applicant submitted two letters to the Tribunal from his mother (dated 6th May 1996) and his father and mother (dated 3rd July 1996). In his mother's letter it is stated that three men came looking for the applicant and asking a lot of questions. They wanted to know when the applicant was returning to Sri Lanka. 2. The second letter (3rd July 1996) states that three men came looking for the applicant stating that they were from the CID. The applicant's father told them the applicant had left the country permanently. They did not believe the applicant and accused him of joining the LTTE. They searched the house, and assaulted the applicant's father. The letter warned the applicant that he should not return to Sri Lanka." 13 We do not accept that the two letters necessarily relate to different incidents. It would be a matter for the Tribunal on reconsideration to consider whether they did so or whether they were different attempts to portray the same incident, possibly flowing from a request to do so. 14 In the course of its reasons the Tribunal said: "The Tribunal referred the applicant to a letter he has submitted to the Tribunal in which it is stated that three men came looking for the applicant stating that they were from the CID and that they were looking for him - the Tribunal asked the applicant why would they be looking for him? The applicant stated that they must have information about Jeyanthan." 15 The Tribunal did not make any finding that the appellant's cousin Jeyanthan had in fact been arrested. What it said later in its reasons were: "The applicant claimed that he left Sri Lanka in April 1996 because he feared being implicated as an LTTE supporter following the claimed arrest of his cousin Jeyanthan. The applicant's claims and evidence were to the effect that Jeyanthan was arrested at the beginning of February 1996. The applicant has provided no independent evidence to corroborate this allegation. The Tribunal notes that the applicant continued to reside at his home after J[e]ynathan's arrest until the end of April 1996 during which time he suffered no adverse treatment by the Sri Lankan authorities. When asked why he encountered no problems he stated that he must have been "lucky". The Tribunal finds this explanation to be unsatisfactory. The Tribunal cannot be satisfied that there is any interest in the applicant by the Sri Lankan authorities, because if there was he would have faced harm in the three months after the claimed arrest of his cousin. The Tribunal cannot be satisfied that the applicant has any well founded fear of Convention related persecution in the foreseeable future by the Sri Lankan authorities." 16 Later still, the Tribunal said in its reasons: "However, considering the applicant's untruthfulness on essential elements of his claim, as well as the inconsistencies in the applicant's claims and evidence, the Tribunal finds that the claims of harm, and threats of harm, by the Sri Lankan authorities and the LTTE, to be a fabrication." 17 When the primary judge approached the issue of the letters he said the following: "Nonetheless, it is apparent that RRT was conscious of the letters because they were twice referred to during the course of its reasons. RRT made it pellucidly clear that it was not satisfied that the applicant has ever been of any interest to the Sri Lankan authorities or that there is any ongoing interest in the applicant by the Sri Lankan authorities. That finding amounts to an implicit rejection of the facts sought to be established by the letters, that is to say that the applicant was of interest to the authorities because, at the time of writing the letters, they were looking for him. The "material" question of fact, in the sense of the substantial issue on which the case turns: Muralidharan v Minister for Immigration & Ethnic Affairs (1996) 62 FCR 402, 414 is whether the Sri Lankan authorities had an interest in the applicant. RRT found, as a matter of fact, that there was no such interest. Its reasons for so finding were a disbelief in, or a lack of satisfaction as to, contentions on the part of the applicant which, if true, might have led to a different conclusion. Whilst it would have been better if RRT had specifically addressed and dealt with the claims made in the letters, a reading of the reasons as a whole leads inevitably to a conclusion that RRT has implicitly rejected those claims. That being so, RRT's reasons for decision sets out the findings on any material questions of fact in conformity with s 430(1)(c) and there is no residual requirement flowing from s 430(1)(d) that RRT must explain why it rejected material pointing in a different direction: see Addo v Minister for Immigration & Multicultural Affairs [1999] FCA 940; Sivaram v Minister for Immigration & Multicultural Affairs [1999] FCA 1740." 18 The content of the obligation arising pursuant to s 430 of the Act was addressed in Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469 by a Full Court constituted by five judges. The reasons of the majority of the Full Bench make apparent that material facts are not confined to those the Act requires to be decided but include those deriving from the influence of, or determination by, the way the Tribunal has approached the case as revealed by its reasons for decision. A decision must be made on a question of fact in order to complete the logical chain. There must be an exposing of the logic of the decision and findings on the matters of fact essential to that logic. A fact is material if the decision and the practical circumstances of the particular case turns upon whether that fact exists. However, there is no specific requirement in s 430 for a tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding it made. A simple noting of material which might suggest to the contrary, without explanation why it did not regard the material as establishing the contrary does not involve a failure to comply with s 430(1)(d). There is a distinction drawn in the reasons between material questions of fact and pieces of evidence. 19 In Re The Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405, McHugh J said at paras [64]-[66]: "There is some authority in the Full Court of the Federal Court for the proposition that s 430(1) requires the reasons of the Tribunal to refer to evidence contrary to findings of the Tribunal [Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 at 31: Logenthiran v Minister for Immigration and Multicultural Affairs [1998] 1691 FCA; Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182]. However the contrary view was taken by differently constituted Full Courts in Ahmed v Minister for Immigration and Multicultural Affairs [[1999] FCA 811], Addo v Minister for Immigration and Multicultural Affairs [[1999] FCA 940] and Sivaram v Minister for Immigration and Multicultural Affairs [[1999] FCA 1740]. In Addo, the Court said [[1999] FCA 940 at [24] and [31]: 'Section 430(1) does not impose an obligation to do anything more than to refer to the evidence on which the findings of fact are based. Section 430 does not require a decision-maker to give reasons for rejecting evidence inconsistent with the findings made. Accordingly, there was no failure to comply with s 430(1) of the Act. … It is not necessary, in order to comply with s 430(1), for the Tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding which it made.' In my opinion, this passage correctly sets out the effect of s 430(1)(c) and (d). However, the obligation to set out 'the reasons for the decision' (s 430(1)(b)) will often require the Tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings. Whenever rejection of evidence is one of the reasons for the decision, the Tribunal must set that out as one of its reasons. But that said, it is not necessary for the Tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the Tribunal. Indeed, to do so would be contrary to the direction in s 420 of the Act that: '(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. (2) The Tribunal, in reviewing a decision: (a) is not bound by technicalities, legal forms or rules of evidence; and (b) must act according to substantial justice and the merits of the case.' In this case, the Tribunal made an express finding that it did not accept the prosecutor's wife's evidence. That was sufficient to comply with the requirements of s 430(1)." (emphasis added) 20 In Kandia v Minister for Immigration & Multicultural Affairs [1998] FCA 1145 (Finn J) the Tribunal did not put either of the letters in question to the applicant nor did it call them into question in any way. The letters concerned, if authenticated and credible, were capable of corroborating in a significant way the factual centrepiece of Mr Kandia's claim of persecution. 21 In Logenthiran v Minister for Immigration & Multicultural Affairs (1998) 56 ALD 639 (Wilcox, Lindgren and Merkel JJ) the Tribunal failed to deal with or make any findings in relation to two claims of importance. These were that Mr Logenthiran had been arrested, detained, interrogated and beaten by the Sri Lankan army and that just a few days before he left Sri Lanka the police in Colombo had arrested, detained and interrogated and beaten him. 22 In Thevendram v Minister for Immigration & Multicultural Affairs [1999] FCA 182 (Spender, North and Merkel JJ) letters to Mr Thevendram raised the question whether, since his departure from Sri Lanka, the authorities had been harassing his family by the reason of a perceived association with the LTTE. They were relevant evidence to the Tribunal's conclusion that it was implausible that the Sri Lankan authorities arrested and detained Mr Thevendram because they perceived him to be a supporter or member of the LTTE. The failure to make a finding in relation to them was held to be a breach of the requirements of s 430(1)(c). In so holding the Court recognised that it was open to the Tribunal to reject or to give little or no weight to the family harassment claim.

23 In our opinion the present appeal may be distinguished from the abovementioned authorities in the following respects. 24 Firstly, the letters were referred to in the course of the Tribunal's reasons. Secondly, the Tribunal referred the appellant to the second letter and sought an explanation as to why the Sri Lankan authorities would have been looking for him. Thirdly, it did not find that the appellant's explanation, namely the arrest of his cousin Jeynathan, had occurred. Fourthly, there were facts which entitled it to place little or no weight on the letters, namely that the appellant had continued to reside at his home after the alleged arrest of Jeynathan until the end of April 1996, during which time he had suffered no adverse treatment by the Sri Lankan authorities. The appellant's explanation that he had been "lucky" was considered to be unsatisfactory. Fifthly, there was a finding that his claims of harm or threats of harm by the Sri Lankan authorities were a fabrication. 25 Furthermore, we consider that the approach of the trial judge correctly applied the reasoning in Singh and Durairajasingham. The material question of fact was whether the Sri Lankan authorities were a source of threat to the appellant. It is apparent that the Tribunal acted on evidence other than the letters which was in conflict with the letters. It was entitled to do so. It was not required to give reasons for rejecting or attaching no weight to such evidence. In fact it stated which evidence it relied upon. These included the matters listed as the third and fourth factors in para [24] above. 26 Accordingly we consider that there was no breach of the requirements of s 430(1)(c) of the Act, nor any residual requirement flowing from s 430(1)(d).

Imputed political opinion 27 In order to consider whether leave should be granted to amend the grounds of appeal it is appropriate to consider the merits of the proposed ground. It is in terms that, the Tribunal failed to address the issue of whether the appellant and his family were imputed with an opinion favourable to Tamils generally or the LTTE in particular, because of their association with Tamils.

28 We agree with the submission for the respondent that the Tribunal dealt with this precise issue. It addressed the general situation pertaining to Burghers, it then turned to the situation of the appellant and his family and found that their contact with Tamil relatives would not result in any shift in the perception, either by the general public or the Sri Lankan authorities, of either the appellant or his family from Burgher to Tamil. The Tribunal found the appellant is a Burgher and that it could not be satisfied he was either a "Tamil Burgher" or a "Tamil" or that he was perceived as one. Further, the Tribunal held that it could not be satisfied the appellant had been imputed with an LTTE profile as a result of his race. We consider that the reference to race in that context, specifically related to the imputation of a profile, addresses the matter raised in the proposed amended ground of appeal. 29 In the evident absence of any failure by the Tribunal to address the proposed amended ground, there is no merit in the grant of leave. Leave should accordingly be refused.

Conclusion 30 For these reasons we consider that the appeal should be dismissed with costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices RD Nicholson, Madgwick and Finkelstein.

Solicitor for the Applicant: Dominic David Stamfords Solicitors

Solicitor for the Respondent: Australian Government Solicitor

Migration Act 1958(Cth)ss 430(1), 476(1)(a)

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