Applicant UP v Minister for Immigration and Multicultural Affairs

Federal Court of Australia|2001-08-03|Before: Weinberg J

REASONS FOR JUDGMENT 1 This is an application under Pt 8 of the Migration Act 1958 (Cth) ("the Act") to review a decision of the Refugee Review Tribunal ("the RRT") affirming a decision of a delegate of the respondent to refuse the applicant a protection visa. By its decision the RRT found that the applicant was not a refugee under the terms of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol ("the Convention").

Background 2 The applicant is a Sri Lankan national. He is presently 45 years of age. He describes himself as a Tamil Muslim. He is of Malay descent. He entered Australia on a student visa on 9 May 1997, travelling on a Sri Lankan passport issued in his own name. On 30 June 1997 he applied for a protection visa. His claims were detailed in a statement dated 29 June 1997. On 1 September 1997 a delegate of the respondent refused his application. On 18 September 1997 he applied for review of the delegate's decision. However, it was not until almost three years later, on 7 July 2000, that the RRT conducted a hearing into his claims. On 17 July 2000 it affirmed the delegate's decision to refuse the applicant a protection visa.

The RRT's findings 14 The RRT accepted the applicant's claim that his father-in-law had supported the LTTE in the past, and that he had disappeared without trace in 1986. It noted that the reasons for that disappearance were unknown. It commented that having regard to the lengthy period that had elapsed since 1986, whatever may have prompted the disappearance did not give rise to a "real chance" that the applicant would be persecuted were he to return to Sri Lanka. 15 The RRT then set out in considerable detail a body of "country information" concerning conditions in Sri Lanka. The "country information" suggested that there had been a long history of antagonism between ordinary Tamils who supported the LTTE, and Tamil Muslims. Tamil Muslims had been closely identified with Sinhalese governments over many years, and had been traditionally regarded as being strongly opposed to the LTTE. They maintained their own cultural, religious and legal traditions, and they generally rejected the demands for a separate Hindu Tamil State. The RRT found, in the light of this "country information", that the applicant's claim that he had donated part of his income to the LTTE after his wife's father's disappearance was implausible. 16 The RRT also rejected the applicant's claim that he had been approached for assistance by LTTE leaders shortly after he returned from Saudi Arabia. It noted that the applicant would have been virtually unknown to any LTTE leaders at that stage. It considered that it was implausible that the LTTE would have placed its operatives' lives at risk by approaching someone who was a relative stranger for help. 17 The RRT noted that the applicant had been unable to provide any significant detail about "Ms K" when pressed about that matter. It noted also that the applicant's claim that "Ms J" had been having an affair with his brother-in-law at about the time that she was arrested had not been mentioned in his initial statement to the delegate in 1997. Nor had the fact that "Ms J" had actually stayed at his home for a month. The RRT rejected the applicant's explanation for having failed to mention these matters, noting that he had been in a sufficiently fit state to be able to provide many details in that statement concerning other past events. 18 The RRT found that the applicant had fabricated claims of his connections with "Ms J" in an effort to bolster his case for refugee status. It found that he had no connection with the LTTE, and that he had never been sought by the authorities on suspicion of having had any such connection. It was not satisfied that he had ever gone into hiding, as he claimed. However, even if he had, the RRT considered that the authorities could have arrested him at any time, had they wished to do so. The applicant had left Sri Lanka lawfully, and under his own name. That too indicated that the authorities had no interest in him. 19 The RRT found that it was sheer speculation that either the applicant's brother-in-law, or "Ms J", had been detained by the police, or by the army. It considered that it was improbable that the authorities would have apprehended these people for their suspected involvement with the LTTE, but taken no action against the applicant. 20 The RRT commented in relation to the situation of the applicant's wife, her brother and "Ms J": "It defies credulity that, believing the authorities sought to arrest her and other family members for having accommodated or otherwise helped a cadre from the LTTE, and believing the authorities had abducted her brother and his lover, the applicant's wife would then report their disappearance to the very authority she believed responsible for their abduction and recent attempts to arrest her. It also defies credulity that if the authorities wanted to arrest the applicant's wife they would not have taken the opportunity to do so when she presented to them. In weighing all the material before it the Tribunal is left in no doubt that the story of the abduction of the applicant's brother-in-law and his lover for a Convention reason is fabricated. It also finds that the applicant's wife has avoided arrest because, like him, she is of no official interest." 21 In a passage which formed the basis for one of the applicant's principal contentions, and which appears as the penultimate paragraph of its conclusions, the RRT said: "The Tribunal also notes that even if the applicant were to be sought for having allegedly supported LTTE operatives no Convention reason is disclosed. Persons who support the LTTE do so knowing of its protracted involvement with terrorism. Leaving aside the question of the legitimacy of the political demands of the LTTE it is public knowledge that its cadres in Colombo and elsewhere have been responsible for numerous acts of violence, including the murder of civilians. It follows that anyone who offers support to cadres in Colombo does so at least knowing of the possibility that they are supporting an extension of serious violence against property and people. The fact that they might be motivated by race or political opinion does not remove the essential criminal character of their support of a terrorist outfit, even if the support they offered to cadres in Colombo, for example, was not based on any detail of the actions or intended actions of those they assisted." 22 Finally, in relation to the account given by the applicant's witness of the current position of Tamil Muslims in Sri Lanka the RRT concluded: "In relation to the claim that Muslims are becoming more outspoken about their rights the Tribunal has been unable to locate any independent evidence of moves for regional autonomy, and none have been put before it. Even if certain questions of regional autonomy were being pursued, the Tribunal notes that the person whom the applicant's witness nominated as the leader of such a movement remains a minister in the Sinhalese-controlled government. Given the long history of cooperation between Muslims and the Sinhalese population in Sri Lanka and the absence of any independent evidence of a conflict brewing over matters such as regional autonomy, the Tribunal finds that any chance of persecution of Muslims due to their demands for certain rights is entirely remote."

The grounds of review 23 By an amended application for an order to review, the applicant relied upon three grounds of review: "1. There was no evidence or other material to justify the making of the decision within s 476(1)(g), 4(b) [sic] of the Migration Act. PARTICULARS The Tribunal based its decision on the existence of a particular fact, and that fact did not exist. (a) That the applicant had made a belated claim about his connections with a woman who had allegedly revealed his LTTE connections when in fact this claim was made at the earliest opportunity in his application. (b) That the applicant claimed that the woman was arrested, released and then taken away/arrested with the applicant's brother-in-law when in fact this claim was never made. 2. The decision involved an error of law being an incorrect interpretation of the applicable law contrary to s 476(1)(e) of the Act. PARTICULARS The Tribunal misinterpreted the law relating to the definition of refugee for the purposes of the Act. (a) In engaging in the reasonable speculation it was required to make, the Tribunal failed to recognise that for a Convention ground to exist it is sufficient for it to be one of multiple reasons for the persecution, alternatively by applying a test where non Convention-related factors exists that this necessarily is inconsistent with a motivation to harm for reasons of imputed political opinion or another Convention reason. (b) It failed to recognise the distinction between persecution and prosecution in its evaluation of the well-foundedness of the applicant's fear. (c) In making a finding regarding the absence of a Convention reason if the applicant was to be sought for allegedly assisting LTTE operatives it characterised the applicant's actions essentially as being within the Convention exclusion of Article 1F without turning its mind to this fact. 3. The decision involved an error of law being the incorrect application of the law to the facts as found by the Tribunal contrary to s 476(1)(e) of the Act. PARTICULARS The applicant refers to and repeats the particulars set out in ground 2."

Ground 1 - No evidence or other material 24 It was submitted on behalf of the applicant that the RRT had based its decision on the existence of two particular facts, neither of which existed. The first was that the applicant had made a "belated" claim about his connections with "Ms J" when, in fact, a claim of that nature had been made, at least implicitly, in his initial statement of 29 June 1997. 25 The second was that the RRT had attributed to the applicant a claim that he did not make. 26 In relation to the first "particular fact" it was conceded by the applicant that in his initial statement he had not mentioned the relationship between his brother-in-law and "Ms J". However, it was submitted that he had implicitly suggested, in that statement, that "Ms J" had stayed at his home shortly before she was arrested. 27 The applicant relied upon a corrected version of the translation of his initial statement which had been filed with the RRT on 17 May 1999. In that statement the applicant said: "After a while I returned to Sri Lanka. The LTTE then contacted me and asked me if I could provide accommodation to the young LTTE women who were travelling form [sic] the North of Sri Lanka to Colombo. I was also requested to help these women to get to the places they wanted to go in Colombo. The LTTE made this request of me and my wife because we both were very well acquainted with Colombo and also because we both could speak Sinhalese very well. As we continued to provide accommodation to these young LTTE women there was a woman who had arrived from the North of Sri Lanka by the name of [Ms K] who was living with us and was spying on Colombo. Once she was arrested by the Slave Island Police in Colombo, she swallowed a tablet of cyanide and committed suicide. As the Police continued their investigations they came across the name and address of another young woman by the name of [Ms J] in the hand bag of the dead woman. The Police went after [Ms J] and succeeded in arresting her as well." (emphasis added) 28 In my opinion, there is no substance in the applicant's contention that the first "particular fact" upon which he relied did not exist. There is nothing in the two paragraphs set out above which suggests, implicitly or otherwise, that "Ms J" was one of the "young LTTE women" whom he had sheltered at his home. The RRT was perfectly entitled to find that not only had the applicant failed, in his initial statement, to mention the relationship between his brother-in-law and "Ms J", but also the fact that "Ms J" had, shortly before her arrest, resided at his home. The latter "particular fact" was anything but "non-existent" - it is plain that the matter of "Ms J's" residence at his home at the relevant time was never mentioned. 29 The second particular fact upon which the RRT was said to have based its decision, but which did not exist, emerges from the following passage in its reasons for decision: "In relation to the alleged abduction of the applicant's brother-in-law and his lover, the Tribunal notes that the identity of their alleged captors is unknown. It is mere speculation that they were abducted by agents of the State. The Tribunal finds it implausible that if the authorities were intent upon taking action against the applicant's brother-in-law and his lover by reason of any suspicion that they were involved in supporting the LTTE that they would not only fail to make use of the provisions under PTA, but that they would take no action against either the applicant when he departed Sri Lanka or his wife. The claim that the authorities would actually arrest the lover of the applicant's brother-in-law in relation to alleged involvement with a terrorist organization and then release her into the community for at least a month before abducting her also lacks credibility." (emphasis added) 30 The applicant denied having ever made the "claim" highlighted above. He submitted that the RRT had erroneously attributed that claim to him, and had then used it, and its rejection, to find that his credibility had been damaged. 31 It was common ground before me that the only claim which the applicant had ever made in relation to "Ms J's" arrest and detention was that she had been tortured while in custody. He had never said anything about her having been arrested, and then released into the community for at least a month before being abducted. 32 It does not follow from the fact that the RRT erred in ascribing to the applicant a claim which he never made that he is entitled to succeed upon this ground of review. Sections 476(1)(g) and 476(4)(b) of the Act relevantly provide: (1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds: … (g) that there was no evidence or other material to justify the making of the decision. … (4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless: (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist." 33 It may be accepted for present purposes that the reference to a "particular fact" in s 476(4)(b) is not limited to the ultimate issue to be determined, or to those matters which are statutory pre-conditions to the relevant decision being made. In Minister for Immigration and Multicultural Affairs v Rajamanikkam (2000) 179 ALR 495 the Full Court said (at 502): "Often, the tribunal rejects a visa applicant's claims because the applicant is found not to be a credible witness. There is no reason in principle why a finding of fact upon which that conclusion as to credibility is made should not constitute a particular fact as that expression is used in s 476(4)(b)." 34 I was told that special leave to appeal has been granted in relation to that decision. For present purposes, however, Rajamanikkam remains binding upon me. 35 It follows that at least the second of the two "particular facts" relied upon in support of that ground is a "particular fact" that "did not exist". 36 Nonetheless, there are two further obstacles which the applicant must overcome in order to establish this ground of review. 37 The first is the need to demonstrate that the RRT's decision was based upon the existence of this "particular fact". In order to do so, the applicant must show that the "particular fact" was "critical" to the making of the decision: Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212 at 220-1 per Black CJ with whom Spender and Gummow JJ agreed. 38 I accept that the attribution by the RRT to an applicant of a claim which he did not make may operate to damage the applicant's credibility. In some cases it may do so in such a fundamental manner as to enable it to be said that the RRT has based its decision upon that "particular fact": Inderjit Singh v Minister for Immigration and Multicultural Affairs [1998] FCA 1366. In the present case, however, I consider that the attribution of the claim to the applicant was at best peripheral to the findings made by the RRT concerning his credibility. In that regard, the matter bears some similarity to Chopra v Minister for Immigration and Multicultural Affairs [1999] FCA 480. There the Full Court concluded that the decision to refuse the appellant a protection visa was not, in any relevant sense, "based on" the existence of the particular fact relied upon because it was but one of many factors rendering his claim untenable, any one of which would have been sufficient to justify the RRT in refusing his application. See generally Minister for Immigration and Multicultural Affairs v Indatissa [2001] FCA 181 at [26]-[28]; Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744 at [35]; Chhour v Minister for Immigration and Multicultural Affairs [2001] FCA 911; and Jegatheeswaran v Minister for Immigration and Multicultural Affairs [2001] FCA 865 at [31]. 39 Even if I am wrong in my conclusion that the RRT did not relevantly "base" its decision in the present case upon the "particular fact" relied upon, the applicant faces a second insurmountable obstacle. It seems to me that it cannot be said that there was "no evidence or other material to justify the making of the decision" within the meaning of that expression in s 476(1)(g). The applicant's evidence before the RRT was uncertain as to critical matters of detail concerning "Ms K" and "Ms J". Many of his answers were seen by the RRT as being inconsistent, and the transcript reveals that he was often evasive. It was no surprise that the RRT regarded him as a person of little credibility. 40 Accordingly, the first ground must be rejected.

Grounds Two and Three - Error of Law 41 The applicant submitted that it was plain from a reading of the penultimate paragraph of the RRT's reasons for decision (set out earlier in par [20]) that the RRT had determined that his claims for a protection visa must fail, even if, contrary to its findings, he had assisted the LTTE precisely as he described. It was submitted that given that the RRT had approached the matter in this way, it was obvious that it had misunderstood the principles which govern claims for refugee status. 42 There is some force in the applicant's contention that the penultimate paragraph suggests that the RRT, though having stated the relevant principles correctly, had a peculiar view of how those principles are to be applied in practice. Had the RRT accepted the applicant's factual assertions, but rejected his claims to protection upon the basis of the reasoning in that paragraph, its decision would have been open to question. That reasoning reveals a narrow, and somewhat strained, interpretation of the concept of "persecution". The fact that the applicant's support for the LTTE might constitute some (unspecified) offence against Sri Lankan criminal law does not, of itself, meant that whatever might happen to him in that country would not happen for a Convention reason. 43 In Z v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 51, Katz J referred to the comments of the Full Court, comprising Beaumont, Hill and Heerey JJ, in Minister for Immigration and Ethnic Affairs v "A" & Ors [1995] FCA 401, and observed: "Their Honours did not identify those additional features which, in their view, would render enforcement by a country of one of its prohibitory criminal laws of general application persecution for a Convention reason. However, I infer that what they had in mind was either selective prosecutions under the relevant law, the criterion of selection of persons for prosecution being those persons' race, religion, nationality, membership of a particular social group or political opinion, or the imposition of punishments on persons convicted under the relevant law, such punishments being greater than they would otherwise have been by reason of the convicted persons' race, religion, nationality, membership of a particular social group or political opinion." 44 The applicant submitted that the reasoning of the RRT in the penultimate paragraph should be read as an application by it of the "what if I am wrong" test as discussed in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291-293 per Kirby J; Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 235-236 and 239-241; Muthukuda v Minister for Immigration and Multicultural Affairs [1999] FCA 1499 at [52]-[58]; and Don Manuel v Minister for Immigration and Multicultural Affairs [2001] FCA 487 at [40]. It was submitted that the only explanation for that paragraph was that the RRT had decided to give the applicant the benefit of the doubt in relation to the findings of fact which it had made provisionally, earlier in its reasons for decision. Having determined that it was appropriate to consider the applicant's case upon the hypothesis that what he had said regarding his involvement with the LTTE was true, the RRT was obliged to apply the law correctly to that hypothesis. It was clear that it had not done so. 45 The principal difficulty with this submission, however, is that the passage in question cannot, in my view, be regarded as an application by the RRT of the "what if I am wrong?" test. The findings of fact which it had made earlier in its reasons for decisions were couched in extremely strong language. The applicant's claims were said to "defy credulity". The RRT said it was left in "no doubt" that the story of his brother-in-law's abduction had been fabricated. Findings couched in terms such as these do not suggest that the decision-maker has made them provisionally, recognising the possibility that they might need to be re-visited, and ultimately rejected. 46 The penultimate paragraph commences with the observation that the RRT "also notes that even if the applicant were to be sought for having allegedly supported the LTTE operatives no Convention reason is disclosed". When read in context, what follows is no more than an excursis into, what was for the RRT, a side issue. 47 To the extent that the penultimate paragraph of the RRT's reasons for decision contains errors of law, and for present purposes I assume that it does, these errors do not seem to me to vitiate its decision. The applicant failed in his claim before the RRT because it rejected his account of his past involvement with the LTTE. Once that account was rejected, there was nothing left for the RRT to consider. The fact that it chose to add to its reasons for decision, almost as an afterthought, a somewhat ill considered paragraph, cannot avail the applicant in these circumstances. 48 The second and the third grounds must also be rejected. 49 It follows that the application for review must be dismissed with costs. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg J.

Solicitor for the Applicant: Erskine Rodan & Associates

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