Careem v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 This is an appeal against a judgment of a Judge of this Court dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 8 April 1998 ("the second decision"). In its second decision the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs refusing to grant the appellant a protection visa. A criterion for the grant of such a visa is that an applicant is a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol. The delegate had refused the application for a protection visa on 9 July 1997. An application was made to the Tribunal to review that decision and on 11 September 1997 a decision was made ("the first decision") affirming the decision of the delegate. In subsequent proceedings in this Court the first decision was, by consent, set aside and the matter remitted to the Tribunal. It was in consequence of that remittal that the Tribunal, differently constituted, made the second decision. 2 The application for judicial review of the second decision was heard on 25 September 1998. At an earlier directions hearing the appellant had been represented and directions had been given for the preparation of the matter for hearing at an earlier date, namely 17 July 1998. However on 10 July 1998 the appellant wrote to the Court indicating that he had withdrawn instructions from his lawyer and wished to obtain another lawyer to represent him. This resulted in the matter not proceeding on 17 July 1998 and the hearing date of 25 September 1998 being fixed. 3 On 25 September 1998 the appellant appeared but was not represented. The appellant asserted to the primary judge that he had not known of the hearing until the day before. The Minister was represented and written submissions were tendered on his behalf. The appellant was assisted by an interpreter who translated those submissions for him. The appellant applied for an adjournment of the proceedings. The primary judge delivered reasons ex tempore on 25 September 1998 explaining that he had reached a provisional conclusion that the application should be dismissed but would allow the appellant to prepare and file written submissions in support of his application by 9 October 1998. That time was later extended to 16 October 1998. Written submissions were lodged on behalf of the appellant on that date. On 23 October 1998 after considering the appellant's submissions, the primary judge gave supplementary reasons confirming the provisional conclusion expressed earlier and made orders dismissing the application. The appellant did not appear on 23 October 1998. His Honour directed that his orders not be entered until seven days after the appellant had been notified of the order dismissing the application. Material provided to the Court indicated that this course was followed and the appellant took no step to set aside the orders. 4 The primary judge summarized the decision of the Tribunal in so far as it set out the claims of the appellant and the Tribunal's approach to them. It is convenient to repeat what the primary judge said: The Applicant claimed that he travelled on a Sri Lankan passport in a false name. However, he did not have the passport when he arrived in Australia by aircraft. The airline booking was made in Dubai the day before he left Sri Lanka. The Applicant variously described his ethnicity as Muslim, Sri Lankan, Tamil and Tamil-speaking Muslim. The Tribunal found that he speaks Tamil as well as some English and Sinhala. There was evidence from a birth certificate that the Applicant was born in the Mannar district which is on the west coast of Sri Lanka, 175 miles north of Colombo, although he claimed that he comes from the north east of Sri Lanka. The reasons of the Tribunal summarise claims and evidence on behalf of the Applicant given in different circumstances. The Tribunal also sets out information said to have been gleaned from independent sources concerning the state of affairs in Sri Lanka. The reasons state that Muslims, though mainly Tamil speaking, do not regard themselves as Tamil. They see themselves and are seen by others as Muslims, being their own separate ethnic group. The reasons state that although there have been instances of Muslims co-operating with and even joining ("the LTTE"), the Tamil guerilla organisation, such instances have been extremely rare. The Applicant apparently agreed at the hearing before the Tribunal that Muslims are a separate group with only the Tamil language in common with the general Tamil population. He agreed that Muslims had good contact with the government in the past but said that now even Muslims are suspected of bringing bombs into Colombo. The Tribunal apparently put to the Applicant that since 1994 there has been a great improvement in the human rights situation in Mannar and that there have been no reports of disappearances and very few cases of harassment. The military presence is highly visible and people must obtain a security clearance to leave Mannar. The Applicant agreed that a security clearance has always been required and that he never had problems getting a security pass because he was a businessman and Muslims have fewer problems in getting passes than others. The findings and reasons of the Tribunal for its decision may be summarised as follows. The Tribunal accepted the difficulties of proof faced by Applicants for refugee status but that issues of credibility are relevant when determining an application for refugee status. While the benefit of the doubt should be extended where appropriate, the decision maker is not required to accept uncritically any and all allegations made by an Applicant. A liberal attitude concerning proof of persecution in the context of an application for refugee status should not however lead to an uncritical acceptance of any and all allegations made by suppliants. Despite the Applicant's various explanations, the Tribunal had grave doubts about the truthfulness of many of his claims. That was because he did not tell the truth about being regarded by the terrorists as an army informer, or at the very least he exaggerated his claims considerably by stating, when interviewed on arrival in Australia, that the police were searching for him. The Tribunal accepted that the Applicant may have been nervous and did not know what to say but considered that that did not explain why he could not have told the truth. Such a lack of truthfulness suggested to the Tribunal that the Applicant thought that a true account of his claims would not get him into Australia. The Tribunal considered that some of his evidence, which had developed over time, was entirely inconsistent or implausible. The Tribunal accepted that the Applicant and his family were driven out of their home village in 1990 and lived in a refugee camp until 1992. The Tribunal also accepted that the Applicant reopened the family business in 1992 and that he had travelled frequently to Colombo to purchase goods for the shop since 1985. Further, the Tribunal accepted as plausible that the Applicant's goods and those of other traders were confiscated by the LTTE in October 1993. The Tribunal also accepted as plausible that the LTTE asked him to transport a small quantity of goods from Colombo to Mannar in March 1995 and that he reluctantly did so. The Tribunal accepted that the Applicant may have been under some pressure from the LTTE after March 1995 to do another trip for them but found that if that pressure amounted to monthly requests, as the Applicant claimed at one point, he successfully resisted the pressure all year and has never been harmed as a result of resisting. The Tribunal did not accept as plausible that such pressure resumed in 1996/97 or that it would resume if he returned to his village now or that he would be killed by the LTTE if he returned and refused to follow their orders. The Tribunal did not accept the Applicant's claim that the LTTE is searching for him because he did not carry out orders, there being no evidence of that. The Tribunal considered that there was no evidence to suggest that the Applicant was or would be targeted by the LTTE for a Convention reason. On the contrary, it was the Applicant's consistent evidence that the LTTE was interested in people travelling and doing business between Mannar and Colombo because they could transport goods for the LTTE. Such people were able to obtain permits for goods and travel relatively freely. The Tribunal considered that the Applicant's Muslim family had not been singled out by the LTTE. The Applicant's evidence about why he was approached by the LTTE suggested to the Tribunal that it was the Applicant's personal attributes, his business experience and his knowledge of the route that attracted the attention of the LTTE. The Tribunal found that the LTTE had not targeted the Applicant because he was a Muslim or because of a political opinion imputed to him by his refusal to help but that his problem with the LTTE arose because of what he, as an individual, refused to continue doing for the LTTE and because they were angry with him for deceiving them or breaking a promise. The Tribunal did not accept that the Applicant was detained for a week by the Navy in February or April 1994 as he asserted. The Tribunal found that evidence implausible in that it had occurred at least four months after the Applicant's goods and other traders' goods were confiscated in public by the LTTE in October 1993. The Tribunal found that the Applicant, being a Muslim trader, had never had any problem getting a security pass or permits for his goods from the authorities, whereas it is reasonable to expect that someone of serious interest to the authorities for supplying goods or in other ways supporting the LTTE would have considerable difficulties. The Tribunal did not accept the Applicant's claim that if the authorities found out that he had transported goods to the LTTE he would be in trouble. The Tribunal accepted that human rights abuses continue to occur in Colombo and that there are instances where police arrest people in order to extort money. However, the Tribunal did not accept the Applicant's claims that he was detained twice in Colombo by the authorities or that if those claims were true that he was detained for a week on each occasion and tortured. The Tribunal found it implausible that if the Applicant was detained and tortured in Colombo as claimed on suspicion of supporting the LTTE, he would have continued to obtain security clearances easily from the authorities in the Mannar area or to travel freely between Mannar to Colombo. In the light of the independent information before the Tribunal that the victims of abuses by the Sri Lankan authorities are overwhelmingly Hindu Tamils, and the Applicant's implausible and inconsistent evidence about these matters, the Tribunal rejected his explanation and concluded that he was not detained and tortured for a week in August 1996 or April 1997. Having rejected the Applicant's claims to have been arrested twice in Colombo, the Tribunal did not accept that the Applicant cannot return to Colombo because of prior arrests. The Tribunal further found that even if he was arrested in Colombo it was because he failed to register his presence as required by the laws of Sri Lanka. The Tribunal considered that there was no evidence to suggest that the Applicant was detained or mistreated by the authorities for a Convention reason, such claims being inconsistent with the information before the Tribunal about the position of Muslims in Sri Lanka, including information that Muslims are not regarded as LTTE supporters and are not usually suspected of being so. The Tribunal accepted that the Applicant may well be checked and questioned if he lived in Colombo. However, that is the result of a law of general application. Muslim Tamils as a group are not generally regarded as supporters of the LTTE and the Tribunal found that there is no real chance that the Applicant would be mistreated by the security forces for an imputed political opinion. Having considered all the Applicant's claims and evidence the Tribunal was not satisfied that he has a well-founded fear of persecution by the Sri Lankan authorities within the meaning of the Convention. Accordingly the Tribunal confirmed the decision under review. 5 The primary judge went on to deal with the grounds raised in the application for judicial review. The first involved a contention that the Tribunal had failed to act in accordance with substantial justice and the merits of the case and had failed to make findings on material questions of fact. This was said to involve the failure of the Tribunal to address the appellant's case concerning his fear of persecution. In particular, it failed to address his fear of detention by the authorities in Colombo and his fear of persecution by the LTTE. The provisional conclusion of the primary judge, which he later confirmed, was that these contentions were totally without foundation. His Honour referred to the consideration the Tribunal had undertaken of his alleged fear of persecution in Colombo and his alleged fear of persecution by the LTTE. His Honour noted that the Tribunal had found the appellant's evidence inconsistent and implausible and that he had not been truthful. His Honour noted that it was open to the Tribunal to make adverse findings on the appellant's credit though he accepted that a question of law may arise if such a finding was not open on the evidence. However his Honour noted that there was no material to which he had been taken which indicated that the Tribunal's findings were inconsistent with the evidence or there was no evidence to support them. 6 The second ground considered by his Honour in his provisional conclusions was one which was said to arise under s 476(1)(e) of the Migration Act 1958 (Cth) ("the Act"). The appellant had contended that the Tribunal had misinterpreted the definition of "refugee" or misapplied the definition to the facts as found. Particulars of this ground were that the Tribunal had erred, it was contended, by: proceeding on the basis that arbitrary arrest and imprisonment are not persecution or could be ignored if circumstances which might otherwise be persecution were terminated by the payment of a bribe; considering that the fact that the appellant could avoid persecution by ceasing to be a trader meant that he did not satisfy the definition; not considering that the definition required that consideration be given to the cumulative effect of the various fears of persecution; and by not considering that the definition required that consideration be given to each separate aspect of the claim of fear of persecution. 7 As to the first particular of this ground, the primary judge said it was not an error of law to find that an arrest resulting from failure to comply with a lawful requirement, namely registration, could constitute persecution for a Convention related reason. It is not clear what his Honour meant by these observations but this part of the judgment is not challenged in this appeal. As to the second particular the primary judge did not consider it reflected a finding that had been made by the Tribunal. The primary judge indicated, in relation to the residue of the matters raised under this ground, that the Tribunal had given full consideration to the contentions of the appellant and had considered independently and cumulatively the various fears the appellant had asserted. The primary judge noted that the failure of the appellant before the Tribunal flowed from the Tribunal not believing the appellant as to the fears which he had asserted. 8 In this appeal the appellant appeared at the hearing for himself, assisted by an interpreter. The appellant filed lengthy written submissions prepared for him by a friend and on which he indicated, through the interpreter at the hearing, he was content to rely. They were supplemented by brief oral submissions though the oral submissions were not directed, in our opinion, to any relevant legal issue. After the appeal had been heard, the appellant gained legal representation. His counsel made written submissions which we address later in these reasons. However it is convenient to first deal with the issues raised by the appellant at the hearing of the appeal as the submissions have not, at least expressly, been abandoned. In the written submissions the appellant himself prepared he outlined the following grounds of appeal: 1. (The Tribunal) has denied my credibility when there was no ground whatsoever to do so. 2. When (the Tribunal) was deciding on the human rights situation in Mannar it has not considered the country information before it. 3. (The Tribunal) commented on the Sri Lankan government's commitment to the maintenance of human rights, based primarily on information in DFAT cables when the contents of these cables have been constantly challenged as unreliable. 4. (The Tribunal) has used a very high standard of proof as such as beyond reasonable doubt when the standard of proof of Refugee cases is the lowest. She has not carefully considered whether there is a "real chance" for me to get persecuted if I go back to Sri Lanka. 5. It has not put forward any inconsistencies to me for my comments but set out those alleged inconsistencies in its decision. Even the alleged inconsistencies she has set out in the decision are not material ones. 6. From the decision it is apparent that the Member has acted biasly and decided my case against the weight of evidence. 7. The Honourable single judge of the Federal Court also conducted my case in an extraordinary procedure. 9 It is convenient to deal with the first, fourth and fifth ground of appeal as they appear to raise essentially the same issue, namely the manner in which the Tribunal dealt with the evidence of the appellant concerning his experiences in Sri Lanka and what may occur to him were he to return. The issue of how the assessment of the credibility of an applicant for a protection visa might be undertaken has recently been considered by a Full Court of this Court in Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126. The Full Court was dealing with an appeal from a judgment of Merkel J who had considered the same issue in an earlier case, Emiantor v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 635. In Emiantor Merkel J had said: The approach of the RRT to the credibility issues was open to it on the material, was based on rational grounds and was arrived at after consideration of matters that were logically probative of the issue of credibility. In these circumstances I do not accept the contentions of the applicants that the RRT erred in law in relation to these findings or that the findings were open to challenge on any other reviewable ground. That conclusion is important to the outcome of the review as it must follow that the findings of RRT as to the past events relied upon to support the claims for refugee status must be accepted as the starting point for the application of the 'real chance' test. (at 649) 10 These observations were referred to with approval by the Full Court in Kopalapillai which said the following about the assessment of the credit of an applicant for a protection visa: Whilst a decision maker concerned to evaluate the credibility of the testimony of a person who claims to be a refugee in Australia will need to consider, and in many cases consider sympathetically, possible explanations for any delay in the making of claims, and for any evidentiary inconsistencies, there is not a rule that a decision maker may not reject an applicant's testimony on credibility grounds unless there are no possible explanations for the delay or inconsistency (S Taylor (1994) 13 UTLR 43). Nor is there a rule that a decision maker must hold a "positive state of disbelief" before making an adverse credibility assessment in a refugee case. The reference by Foster J, sitting as a member of the Full Federal Court in Guo's case at p 191, to a requirement for a "positive state of disbelief" was not directed to this issue of the determination of credibility, but rather to the question of when an adverse credibility finding will logically found a positive finding that a particular fact asserted by the witness does not exist. The primary judge, in giving consideration to the appellant's submission that the RRT adopted a legally flawed approach to the assessment of his credibility, repeated observations earlier made by him in Emiantor v The Minister for Immigration and Ethnic Affairs (Federal Court of Australia, Merkel J, unreported, 3 December 1997). His Honour expressed the view that the same observations could be made as to the RRT's approach to the credibility issues in the present case. The Full Court of the Federal Court has expressed agreement with his Honour's treatment of the credibility submissions in Emiantor's case and found no error in his approach (Emiantor v The Minister for Immigration and Multicultural Affairs, Full Court of the Federal Court of Australia, unreported, 20 July 1998). 11 The account of the appellant considered by the Tribunal in this matter contained two significant events. One was the appellant's claim that in early 1994 he had been detained by the Navy for a week. The other was that he had been detained and tortured in Colombo on two occasions, most recently shortly before he arrived in Australia. The Tribunal was not satisfied that these events had occurred. Its explanation for this approach to the appellant's account is both plausible and rational. It discloses, in our opinion, no reviewable error of law. While circumstances may arise where it is appropriate for the Tribunal to put to an applicant matters which might found a later conclusion that the applicant's account was not a credible one, this is not such a case. 12 Grounds two and three raised by the appellant in this appeal do not appear to have been raised in the application for judicial review or at least not in the same terms. However they do not, in any event, raise an issue of substance. The conclusions of the Tribunal did not depend on a detailed consideration of the circumstances in the Mannar region. It is true that the Tribunal records in its reasons that it put to the appellant that since mid 1994 there had been a great improvement in the human rights situations in Mannar and there had been no reports of disappearances and very few cases of harassment. This opinion was plainly based on the Department of Foreign Affairs and Trade cable of 9 July 1997. Other country information that had been referred to in submissions of the appellant's representative to the Tribunal and repeated by the appellant in his written submissions in this appeal is not inconsistent with the proposition put to the appellant. The appellant's submissions in the appeal repeat references in other country information to several instances in the Mannar region, or more generally in Sri Lanka, concerning what might be human rights abuses. In so far as they relate to the Mannar district they are isolated instances which are not inconsistent with the general proposition that there had been a great improvement in the human rights situation in Mannar. The approach taken by the Tribunal to the independent country information and the Department of Foreign Affairs and Trade cable of 9 July 1997 does not suggest any reviewable error on the Tribunal's part. 13 The contention of the appellant asserted in the grounds of appeal, but not particularized or developed by submissions, that the Tribunal was biased (whether actually or ostensibly) is without foundation. 14 Ground seven raises an issue about the way in which the primary judge dealt with the application for judicial review. The course his Honour adopted plainly was intended to ensure that the appellant was given every opportunity to put what he wished in support of his application. The course followed by his Honour enabled the appellant to consider the matters which had led the primary judge to the provisional view that the application should be dismissed. There is no reason to believe that his Honour could not have been persuaded to alter those provisional views by submissions later made. The fact that he was not simply reflects that the case of the appellant was not a persuasive one. 15 To this point we have been considering the submissions made by the appellant himself. However, as noted earlier, he retained counsel after the appeal had been heard and written submissions have been filed by counsel with the Court's leave. 16 Those written submissions focused principally on one aspect of the appellant's account that the Tribunal had accepted. It concerned the carriage of goods for the LTTE in March 1995. The appellant had told the Tribunal that the LTTE had found out in late 1994 he was a regular traveller to Colombo and that in March 1995 they asked him to transport a few items for them. The appellant had said that traders who travelled were sought by the LTTE for this purpose. The appellant tried to avoid carrying the goods but was threatened. He said he carried only very small quantities of goods given to him by an LTTE person in Colombo. The appellant had said at that time, peace negotiations between the government and the LTTE were under way and that no permits for the goods were needed and checking was relaxed. 17 The Tribunal said in its decision that it accepted as plausible that the LTTE asked the appellant to transport a small quantity of goods from Colombo to Mannar in March 1995 and that he reluctantly did so. The Tribunal thus appears to be accepting the appellant's account which we have just set out. In relation to this matter the Tribunal later said: The Tribunal does not accept the Applicant's claim that if the authorities find out that he transported goods for the LTTE he would be in trouble. This is because this incident happened more than three years ago when the goods he carried were not banned and he had the required permits/or permits were not required. Furthermore, there is no evidence to suggest that this information has come to light or would ever come to light.