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[2000] FCA 731
Federal Court of Australia
2000-06-02
Gummow J, Mason CJ, Moore J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 This is an application by Gangodavilage Dabare ("the applicant") for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 2 July 1999. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") refusing to grant the applicant a protection visa. The criterion for the grant of such a visa is that the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention"). Background 2 The applicant is a citizen of Sri Lanka who arrived in Australia on 5 December 1993, and returned to Sri Lanka on 29 December 1993. On 11 April 1996 the applicant returned to Australia. On 11 June 1996 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. On 11 September 1997 the application was refused by a delegate of the Minister, and on 8 October 1997 the applicant sought review of that decision. Both the delegate and the Tribunal considered the circumstances of the applicant and whether the applicant was a refugee. Art 1A(2) of the Convention contains, for present purposes, the definition of refugee. It provides: "… the term "refugee" shall apply to any person who; … (2) owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality in being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it."
Proceedings before the Tribunal 3 The essence of the applicant's case before the Tribunal was that he will be subjected to persecution if forced to return to Sri Lanka because he is suspected of involvement with the Liberation Tigers of Tamil Eelam ("LTTE"), has provided various forms of assistance to Tamils, and has been a supporter of the United National Party ("UNP"). The reasons for decision of the Tribunal commenced with a discussion of the relevant legislation and what is comprehended by the definition of "refugee" and by the notion of "persecution". Reference was made to the judgments of the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 and Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 and to the judgment of the Full Court of this Court in Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565. 4 In relation to the meaning of "persecution" in the Convention the Tribunal said: "Second, an applicant must fear persecution. In Applicant A, Gummow J at 284 referred to the primary meaning of the term "persecution" in ordinary usage: "The action of persecuting or pursuing with enmity or malignity; esp the infliction of death, torture, or penalties for adherence to a religious belief or an opinion as such, with a view to the repression or extirpation of it; …" Not every threat of harm or interference with a person's rights for a Convention reason constitutes "being persecuted". Mason CJ referred to persecution as requiring "some serious punishment or penalty or some significant detriment or disadvantage." (Chan at 388) Harm or threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group which is subjected to systematic harassment, amounts to persecution if done for a Convention reason. In appropriate cases it may include single acts of oppression, serious violations of human rights, and measures "in disregard" of human dignity. The persecution must have an official quality, in the sense that it is official or officially tolerated or uncontrollable by the authorities of the country of nationality. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors." 5 The Tribunal went on to note that the applicant's fear of persecution must be a well founded one. 6 The Tribunal recounted the claims of the applicant in a section headed "Claims and Evidence". The Tribunal first noted that the applicant's claims were set out in written submissions to the Department, written submissions to the Tribunal and oral evidence given to the Tribunal. The Tribunal then detailed what emerged from the applicant's account which is now summarised in so far as it is relevant to the Tribunal's findings. 7 The applicant is a man of Sinhalese ethnicity from Colombo. The applicant's family had Tamil relatives and friends and his family was well known in the area as having Tamil connections. His family were also supporters of the UNP, and knew the local UNP Member of Parliament who became Minister for Trade between 1977 and 1989 ("the Minister"). 8 From 1976 to 1996, the applicant was employed as an office aide at a large hotel in Colombo. His duties included monitoring staff movements. During anti-Tamil riots in 1983, he provided accommodation in the hotel for two Tamil families. The families were arrested by CID officers on suspicion of LTTE involvement and the applicant was also taken for questioning. Among other things, the CID officers threatened to shoot him if they could prove LTTE connections, told him that they had information about his LTTE involvement and threatened to persecute him. The applicant was released when his father contacted the Minister, who secured his release. 9 In 1984 a bomb exploded in the hotel and all employees were interviewed before being allowed to leave. When the applicant mentioned his previous questioning by the police, he was taken to police headquarters. He was held overnight, questioned as an LTTE collaborator and "assaulted with other inmates". The next morning his family, with the assistance of the Minister, secured his release, as the person who planted the bomb and those who assisted at the hotel had been arrested. At the hearing the Tribunal noted that the applicant retained his employment for many years thereafter, which appeared inconsistent with the authorities suspecting his involvement with the LTTE. The applicant replied that his problems with police did not necessarily translate into problems with hotel management, that his position in the hotel was not very important, and that where CID officers and police had to make routine inquiries of him thereafter they did so in an impolite manner. 10 In 1984 the applicant rented part of his house to a Jaffna Tamil ("the tenant"). In 1989 the tenant was detained by police and found to have had long-standing LTTE connections. The police found foreign cheques, departmental addresses, maps, letters and charts belonging to the LTTE in the applicant's house. He was taken by police and held in custody for three days, during which time he was questioned about LTTE involvement and assaulted and kicked. He was released through the influence of the Minister. At the hearing, the applicant further stated that the police subsequently came to his house on many occasions and questioned him and on one occasion he was hit. When asked by the Tribunal why he did not include this in his original statement, the applicant replied he had wanted to mention the main things but not the small ones. 11 The applicant's father died in 1990 and the applicant subsequently did not have the same direct access to the Minister. Following the assassination of the Minister in 1993 and the assumption of power by the People's Alliance ("PA") in 1994, the applicant feared revenge at the hands of the PA and was harassed and assaulted on the streets by local police officers and thugs loyal to the PA for his support of the UNP. At the hearing the Tribunal questioned the applicant about why his support for the UNP would cause him difficulties, and the applicant stated, inter alia, that his difficulties might have been caused by other UNP members who were jealous of his privileges and connections. 12 In January 1996, the Central Bank in Colombo was bombed. Following this, CID officers, while conducting a house to house search, questioned him about his Tamil tenant. The officers said they had information about his connection to the LTTE and involvement in the Central Bank bombing and that he was detained for two days at the Navala police station and then transferred to police headquarters. There he was assaulted and told he would be transferred to the Boosa detention camp ("Boosa") unless he paid them 100,000 rupees for his release and signed a statement that he had assisted the LTTE. He was also told to leave Sri Lanka for good and not to support the UNP and threatened with abduction and murder. In addition, he was told that anyone working against the PA would be considered a Janatha Vimukthi Peramuna ("JVP") or LTTE supporter, and told he would be shot under Emergency Regulations for having LTTE connections. The applicant paid the money and signed the document and was warned that it would be used against him if he returned to Sri Lanka. After his release he obtained an Australian visa and left Sri Lanka in April 1996. At the hearing the Tribunal put to the applicant that Boosa had been closed before January 1996. The applicant replied that it remained open, and that many local people knew this. The Tribunal also noted that it was strange that the police would release someone who had signed a statement of their LTTE involvement and tell them to leave the country. The applicant stated that he was transported somewhere else after police headquarters and that it may not have been the police who required him to sign the paper and extorted the money from him. 13 Before embarking in its reasons on a more detailed consideration of the material before it, the Tribunal dealt with the applicant's credibility and expressed its "firm conclusion" that the applicant "was not a credible or truthful witness whose evidence could be relied upon". With regard to the applicant's fears based on his support for the UNP, the Tribunal stated that the applicant's account contained "significant embellishments and fabrications which made it unable to accept his evidence at face value". The Tribunal found some assertions to be "highly implausible", others to be "simply inconsistent with known facts" and others still to have been introduced by the applicant at the hearing to "bolster his claims". The Tribunal set out principles governing credibility in administrative review proceedings in refugee matters. The Tribunal also stated that in considering the genuineness of the applicant's subjective fear of persecution prior to December 1993, the Tribunal had regard to the fact that the applicant visited Australia in that month and returned to Sri Lanka. The Tribunal was satisfied that the applicant did not have a genuine subjective fear of persecution in December 1993 which precluded his return to Sri Lanka. 14 The Tribunal considered the applicant's evidence and claims in a section in its reasons titled "Findings and Reasons". The Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the Convention. 15 In relation to the 1983 riots, the Tribunal did not accept that the police mistreated or threatened to shoot the applicant for assisting Tamils to find accommodation at the hotel where he was employed, or that his efforts formed a basis for future detention or mistreatment. The Tribunal noted that there was no independent evidence that the Sri Lankan Government impeded or penalised such efforts. 16 The Tribunal accepted that in 1984 the applicant was questioned at a police station after a bomb exploded at the hotel, and was released after one day. However, the Tribunal did not accept that the police continued to suspect the applicant thereafter, on the basis that those responsible had since been arrested. Moreover, the Tribunal did not accept that the police told the applicant that they believed or had specific information that he was involved with the LTTE, on the basis that the applicant would not have been released and nor have retained employment at the hotel for another eleven years. 17 Concerning events between 1989 and 1993, the Tribunal accepted that the police arrested the Tamil tenant of the applicant in 1989, on suspicion of LTTE involvement. However, the Tribunal was not satisfied that the person was an LTTE agent in possession of incriminating documents "which he would have been most unlikely to have retained". The Tribunal also did not accept that the police suspected the applicant of LTTE involvement, assaulted him, or visited his home on numerous occasions to question him. Nor did the Tribunal accept that the applicant threatened revenge on the police when the UNP returned to power. The Tribunal stated: "The UNP was already in power throughout this period and the Applicant stated that he was assisted by a prominent UNP politician through a connection with his father up to 1990. The Applicant has claimed that this link continued up to the politician's death in 1993, but the Tribunal does not accept that the Applicant […] had any continuing close or significant relationship with him. In any event, the Applicant would not have continued to have any UNP link or to have been assisted by a prominent UNP politician had he been seriously suspected of such involvement with LTTE terrorism." 18 The Tribunal referred to independent evidence, in the form of advice from the Department of Foreign Affairs and Trade ("DFAT"), that a Sinhalese would not be seriously suspected of such LTTE involvement unless there were direct incriminating evidence. The Tribunal found it implausible that, absent exceptional circumstances, a Sinhalese would be suspected of LTTE involvement, at least through the provision of rented accommodation to Tamils suspected of LTTE involvement. This consideration was stated to apply to the applicant's claimed arrest in 1996. The Tribunal proceeded to describe the applicant's evidence about that incident as "confused and contradictory, shifting to meet difficulties put to him at hearing" and "unsatisfactory" and stated that it was not satisfied the event had occurred as claimed. Furthermore, the Tribunal found it implausible that the police would order the applicant to leave Sri Lanka, or threaten his life because he supported the UNP, or tell him that the PA would stay in power improperly, or would consider an opponent of that government to be a JVP or LTTE supporter, or would be shot under Emergency Regulations. The Tribunal was satisfied that these claims had been fabricated. 19 The Tribunal then referred to independent evidence, again in the form of DFAT advice, to the effect that there was no evidence that the PA has targeted UNP members or supporters since it formed government. The applicant sought to contradict some of this evidence, but the Tribunal stated that none of the matters raised by the applicant "affects the thrust of the material cited or persuades the Tribunal of the truth of the Applicant's allegations about the specific threats by the police". 20 The Tribunal accepted that "extortion demands may have been made of [the applicant] by unknown persons", but stated that the applicant's evidence did not enable the Tribunal to be satisfied as to the exact circumstances, and that on the evidence it was not satisfied that the extortion occurred for a Convention reason. 21 Last, the Tribunal referred to independent evidence, comprised of a DFAT report, a US State Department report and a letter from "Lawyers for Human Rights and Development" ("LHRD"), and found that the applicant had reasonable access to effective mechanisms in Sri Lanka for redress and complaint in relation to any past or future mistreatment by police.
The application for judicial review 22 At the hearing on 8 March 2000, counsel for the applicant was given leave to amend the application for judicial review with the result that two aspects of the Tribunal's decision and the procedures adopted at the hearing were said to disclose reviewable error. 23 The first aspect related to passages in the transcript of the hearing in which the Tribunal put to the applicant a proposition or spoke to the applicant in a way that was said by the applicant to evince actual bias: see s 476(1)(f) of the Migration Act 1958 (Cth). In the first passage complained of the Tribunal put a proposition to the applicant which included a statement that it was "utterly implausible for police to automatically impute such a householder with an LTTE profile". That the proposition was cast in these terms was said to evidence a closed mind. The short answer is that the Tribunal was simply quoting part of a report from the Australian High Commission and the language used says nothing, in my opinion, about the views of the Tribunal. 24 In the second passage complained of the Tribunal was engaging the applicant in an exchange about what might have motivated those making the threats of extortion that the applicant claimed he had experienced. It may be accepted that the Tribunal expressed in fairly unqualified terms a view about what may have motivated those making the threats. However that was said after the Tribunal pointed out what it perceived to be an inference to be drawn from earlier evidence given by the applicant. In my opinion, the statements were made by the Tribunal to elicit comment from the applicant about what the Tribunal then perceived to be the import of the evidence. The statements do not evidence bias. 25 The second aspect of the Tribunal's decision and the procedures adopted at the hearing raised by the applicant concerned the translation of the evidence the applicant gave. While the applicant indicated in his application for a protection visa that he could write and read English, he requested and was provided with an interpreter to interpret from the Sinhalese language. It was submitted by counsel for the applicant that the transcript of the hearing makes clear that the interpretation was deficient in several material respects. If so, it was submitted, first the Tribunal had not observed a required procedure: s 476(1)(a), namely the procedure contemplated in s 425 of the applicant giving evidence and secondly the Tribunal had failed to give effect to the requirements of s 420. It is unnecessary to elaborate on how these grounds arise if defective interpretation is, as a matter of fact, established as they were canvassed in some detail by Kenny J in Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 which is relied upon by counsel for the applicant as establishing the applicable principles in a case such as the present. I am bound to follow her Honour unless I consider the judgment is plainly wrong, which I do not. 26 I will shortly consider the criticisms made by counsel for the applicant of the translation which are based on a transcript of the hearing prepared by Auscript. Before doing so, however, I should refer to the approach adopted by the Tribunal which makes the adequacy of the interpreting a matter of some importance. As noted in par 13 above, the Tribunal did not view the applicant as entirely credible. Its general views on the applicant's credibility were expressed in the following passage: "Although the Tribunal does not attach importance to minor inconsistencies of detail, it has carefully considered more serious inconsistencies and difficulties with the Applicant's evidence. There were a number of difficulties, some quite serious and others less so, which taken together raised serious questions about the Applicant's credit. Nor was the Applicant able to provide satisfactory explanations when these matters were put to him at hearing. The Applicant's evidence at hearing was often confused and shifting, providing different and sometimes inconsistent answers or explanations when challenged […] The Tribunal was in no doubt that the Applicant's account contained significant embellishments and fabrications which made it unable to accept his evidence at face value." 27 It can be seen from this passage that the Tribunal attached some weight to the manner in which the evidence was given. The Tribunal did, however, go on to refer to various aspects of the evidence that illustrated inconsistencies and implausible explanations. Nonetheless the reliance on the manner in which the evidence was given may legitimately raise for consideration the quality of the interpreting. 28 In Perera v Minister for Immigration & Multicultural Affairs (supra) Kenny J discussed at par 41 the way in which the Court might, in proceedings such as these, assess the adequacy of the interpreting: "What are the factors that might lead a reviewing court to conclude that the transcript of a Tribunal hearing discloses such incompetence in the interpretation that, in consequence, the applicant for refugee status can be said to have been effectively prevented from giving his evidence? In my opinion, those factors include, amongst others, the responsiveness of the interpreted answers to the questions asked, that coherence of those answers, the consistency of the one answer with another and the rest of the case sought to be made and, more generally, any evident confusion in exchanges between the Tribunal and the interpreter…" 29 In written submissions filed after the hearing and after the Auscripttranscript had been prepared, counsel for the applicant identified several features of the way the hearing was conducted to establish that the interpreting was deficient. It was first noted that there is no reference in the transcript to the interpreter's accreditation, his formal or informal qualifications, his experience as an interpreter or his experience as an interpreter in the Sinhalese language. A submission was then made that it was apparent from the transcript that on a number of occasions lengthy and complex questions were put by the Tribunal that resulted in very short answers. The first involved the Tribunal member putting to the applicant lengthy extracts from two reports from DFAT and then inviting comment. The brevity of the response is, in context, unexceptionable. The second occasion was similar. That is, the Tribunal put to the applicant a lengthy passage from a departmental report and invited comment. While the answer is somewhat cryptic, it is, in context, responsive. The third occasion was when the Tribunal was commencing to put a proposition to the applicant and doing so by reference to a report from the Australian High Commission in Colombo. The brief response of the applicant was simply an acknowledgment that the proposition was being put. None of these passages, in my view, support the contention that the interpreting was deficient. 30 Counsel for the applicant then embarked upon a detailed consideration of the whole transcript and identified 58 occasions on which, it was submitted, it was evident that the interpreting was deficient. Many of them are passages where the grammar and/or language used is imperfect. While passages such as these may raise some doubt about the fluency of the interpreter they do not, of themselves, suggests that the interpreting was so deficient as to justify a conclusion that the applicant had not been afforded the opportunity contemplated by s 425. 31 However there are several passages relied on by counsel for the applicant where the transcribed questions and answers require greater attention. The first concerned a series of questions from the Tribunal about the nature of the applicant's employment in the hotel and why, if he was perceived to be a security threat or risk, he was able to work in a position where he had a role in maintaining security (and stopping breaches of it). However a point was reached in the questioning by the Tribunal where the applicant was able to provide an explanation, in what appears to be clear terms, dealing with the proposition being put by the Tribunal. That is, the applicant's explanation that he was "not a very important person in the hotel" followed by a coherent explanation about the limits of his responsibilities. Thus, even if the translating had been deficient to that point on this issue, the applicant was afforded an opportunity to explain the position. That the Tribunal did not accept that this explanation could be readily reconciled with the applicant's claims more generally does not result from any deficiencies in the translation. Rather it flows from the Tribunal's view (which is not, and probably could not be, challenged in these proceedings) that the explanation and the claims do not sit comfortably together. 32 The second passage is similar to the first. It involved a series of questions asked by the Tribunal about what was said to the applicant when he was released from detention shortly before leaving Sri Lanka. Some of the answers are not entirely coherent or grammatically correct and, at one point, the answer to a question was provided by the interpreter and a further answer then provided by the applicant in English. The question the Tribunal was raising with the applicant and was seeking to have answered was why, after a written confession of sorts had been extracted from him concerning his complicity with the LTTE, he was released and urged to leave the country. It was a reasonable question to ask and one the applicant may well have had difficulty in answering. I am not satisfied that what might appear to be deficiencies in the interpreting are, in fact, deficiencies rather than convoluted or cryptic answers from a person who was unable to provide a ready and coherent answer to a difficult question. 33 The next passage was one in which the Tribunal was asking the applicant about why he did not seek asylum when he first entered Australia in 1993. The interpreter twice prefaced the interpreted answer by an observation to the effect "now the applicant says … ". While plainly this is an inappropriate comment for an interpreter to make, the question the Tribunal was wishing to have answered, was answered in a comparatively coherent and intelligible way shortly after these comments were made by the interpreter. That is, the applicant explained that he came to Australia and received advice not make an application. 34 In a later passage a similar comment is made by the interpreter in a discussion between the Tribunal and the applicant about the treatment of supporters of the JVP. It was submitted that the comment that "the applicant now says …" implied that the applicant was changing his mind in saying what he did after the comment. In my opinion, it is unlikely that this is how the Tribunal would have understood the comment in the context of the entire exchange. What the applicant said after the comment simply reflected what the Tribunal had put to him which, in turn, was consistent with an immediately preceding answer of the applicant. 35 The last passage I should refer to was one in which the interpreter apparently pointed to a document (which contained a definition) during the course of translating something the Tribunal said. Neither the document nor the definition had been referred to by the Tribunal. The Tribunal rebuked the interpreter and directed him to carefully interpret the comments which the Tribunal then repeated and elaborated upon. This transgression by the interpreter appears to have had no material effect on the course of the hearing. 36 While the above illustrates that the standard of interpretation was not high, I am not satisfied that it was of a standard that justifies a conclusion that the applicant was not afforded an opportunity to appear before the Tribunal and give evidence as provided in s 425. Counsel for the applicant also relied on s 420 but I presently do not understand its relevance given the decision of the High Court in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577. 37 I dismiss the application and order the applicant to pay the respondents costs. I certify that the preceding thirty-seven(37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore .
Associate: Dated: 2 June 2000 Counsel for the applicant: Mr M Gros
Solicitor for the applicant: Pushpa Hettiarachi & Associates
Solicitor for the respondent: Australian Government Solicitor
Dabare
Minister for Immigration & Multicultural Affairs
(1999) 92 FCR 6
(1989) 169 CLR 379
(1997) 190 CLR 225
(1997) 191 CLR 559
(1995) 57 FCR 565
(1999) 162 ALR 577