Epeabaka v Minister for Immigration and Multicultural Affairs

REASONS FOR JUDGMENT Primarily because of the adverse credibility finding it made, the Refugee Review Tribunal ("the Tribunal") was not satisfied that the applicant, Thiagarajah Kandiah, was a refugee. This application for an order of review under Part 8 of the Migration Act, 1958 (Cth) ("the Act") is directed at how the Tribunal went about making that finding. Mr Kandiah is a Sri Lankan national and a Tamil. Of the various incidents on which he relied to make out his claim of fear of persecution one event stood out. It was that, following a bomb blast in Colombo on 31 January 1996, he was detained at an army camp called Slave Island and tortured for fourteen days. He claims he was so badly beaten that on his release he went to Colombo General Hospital where he remained for more than a month. His principal treating doctor there he said was a Dr Rajakulendran. In view of its credibility finding the Tribunal did not accept that these events occurred as claimed. To appreciate both how those findings were made and the basis of Mr Kandiah's attack on them, it is necessary to describe in a little detail the manner in which his application was approached by the initial decision maker (ie the delegate of the respondent Minister) and then by the Tribunal.

Dealing with Mr Kandiah's Application (a) The Decision of the Delegate Mr Kandiah submitted a letter purporting to be from Dr Rajakulendran in support of his application. It stated (formal sections apart): "To Whom It May Concern This is to certify that Mr Kandiah Thiyagarajah of 155/6, Galle Road, Colombo 04 was treated for multiple contusions and internal bleeding. He was in severe body pain. He was treated for five weeks from February 15 1996 and he given a history of being assaulted by Army personnal." The delegate, having interviewed Mr Kandiah on 6 September 1996, initiated inquiries into the authenticity of the letter. On 9 September he wrote the following file note: "Re: Thiyagarajah Kandiah I spoke to Peter Hobbs about the medical certificate the abovenamed submitted in support of his application for refugee status. In his application the applicant claimed that he was beaten by security personnel to the point that he required hospitalisation from 15 February 1996 and that he was in fact in hospital for a period of one month. The manner in which the certificate was worded indicated that it may not be genuine. Mr Hobbs suggested that verification should be sought from Sri Lanka. I telephoned Sri Lanka on 9 September 1996 and spoke to Dr Rajakulendran, who was immediately familiar with the case. He stated that he did not actually examine Mr Kandiah but referred him to the General Hospital, Colombo and gave the telephone No. as 727070. However, when I telephoned this number a young person answered from a private residence. It was obvious that I was given the wrong number. I then telephoned the Sri Lankan High Commission, Canberra, who gave me the General Hospital's number viz: 691111. I rang this number and spoke to someone in the administration section who informed me that there was no person by the name of Kandiah Thiyagarajah having been admitted for treatment for the period claimed. It now appears the medical certificate submitted by the applicant has been contrived. I have decided to re-interview the applicant on this aspect." On 12 September 1996 the delegate conducted the foreshadowed second interview. Mr Kandiah adhered to his story. When confronted with the delegate's account of his communications with Sri Lanka, Mr Kandiah explained that he had obtained the letter after his treatment to give himself "future credence" if he was later confronted by security officers in Sri Lanka. During the interview the delegate appears again to have telephoned Colombo. The delegate narrated the burden of the call as follows: "Okay, well, I telephoned the hospital again, I spoke to a male nurse called Leonard in ward 33, and he looked up the record - took him half-an-hour - he looked up the records for that ward and he found no record of your admission. He found no record of this doctor actually working in that ward for anyone. So I do not know where we go from here. There is one more thing that I am going to check, and that is the general admissions register for the hospital, whether the admission was made on the general admission. But he has got no -he does not know this doctor. And this male nurse, he works - called Leonard - he works in that ward and knows all the doctors who go there." On 17 September Mr Kandiah wrote to the delegate concerning the interview. He reiterated his story and that the male nurse to whom the delegate spoke gave incorrect information because he knew Mr Kandiah was a Tamil. The following day the delegate contacted an officer in the Australian High Commission seeking that, as a matter of urgency, discrete inquiries be made. He observed that there appeared to be a "serious credibility gap" in Mr Kandiah's story. He was informed on 7 October that the inquiries sought would have to go through proper "DFAT" channels. There the matter of inquiries stopped. On 15 November 1996 the delegate gave his decision refusing the grant of a protection visa. (b) The Tribunal's Decision In a letter of 13 January 1997 prepared by a migration agent in explanation of Mr Kandiah's application to the Tribunal, it was stated that: "5. The applicant says that when he rang up to the doctor to find out why he denied treating him at the General Hospital, Colombo when he had actually given treatment to him, the doctor replied as follows: (a) He said that when the call came to him inquiring about the letter he had given the applicant, he had admitted that he did so. (b) Later from the way questioning were put to him, the doctor suspected that the Sri Lankan authorities were posing off as Australian Immigration Officials, and when such a suspicion arose in his mind, he denied treating him in hospital because of fear of his own life. (Please see the letter annexed herewith, issued by the same doctor.)" The annexed letter (of 23 December 1996) was addressed to the Immigration Department. It purports to have been written by Dr Rajakulendran and said as follows: "I have to give you the following information regarding Mr Thiyagarajah Kandiah, who was my patient at the General Hospital (National Hospital), Colombo 10. I treated him for five weeks from February 15th 1996, for multiple contusions and internal bleeding. He was in severe body pain. He has given a history of being assaulted by army personnel. When I was contacted by a person over the phone and inquired about this matter in the first week of September, 1996, I did not realise that the person was actually from the Immigration Department, Australia and I also suspected that the person might be a Sri Lankan authority. As such, I denied that I had treated him. I wish to confirm that I have actually treated him during the period stated above and the information I gave in my previous letter dated 15th April, 1996 is true and correct." Also included with the migration officer's letter of 10 January was a letter of 3 September 1996 (sic) purporting to come from the Director of the National Hospital of Sri Lanka and written on hospital stationery. It said (omitting formal parts): "TO WHOM IT MAY CONCERN This is to certify that Dr. F.A. Rajakulendran is a Medical officer attached to National Hospital of Sri Lanka, Colombo 10." Neither at the hearing nor in the Tribunal's reasons was reference made by the Tribunal to either of these letters. To the extent that reference was made at the hearing to Mr Kandiah's claimed hospitalisation and treatment in Colombo, it related (i) to information provided to the delegate in his telephone call to the General Hospital that it had no record of Mr Kandiah being admitted for treatment; (ii) to Mr Kandiah's failure to mention to a Human Rights Task Force in Sri Lanka that he was detained, beaten and then hospitalised; and (iii) to the delegates, and then to Mr Kandiah's claimed, phone calls to Sri Lanka. On two occasions at the hearing the lack of a hospital record of admission was put to Mr Kandiah. In each instance he claimed this was "wrong". The latter two of the matters above were dealt with sequentially at the hearing as the transcript records. I would note that the initial references in what follows to a "statement" is to a document prepared for Mr Kandiah by the Human Rights Task Force in light of a statement made by him at that body's office. "MR KISSANE: It [ie the statement] also makes no reference of you being beaten by the army on 10 or 11 January of 1996. What I find most extraordinary about this letter is that it makes absolutely no mention of your being detained at Slave Island for two weeks. THE INTERPRETER: In fact I mentioned that also when I gave the statement. MR KISSANE: It also makes no mention […]that you were hospitalised for one month. THE INTERPRETER: In fact they said information regarding this first of all I will have to lodge that complaint with the police before they could lodge it with them. MR KISSANE: I find that sort of statement difficult to accept, I think. It seems to me that if you have gone to the Human Rights Task Force to complain about your treatment that it makes sense to me that you would start with the most serious offence, serious incident, and tell them about that first. THE INTERPRETER: But I did go there to mention the important and serious things that have happened to me. MR KISSANE: Why would not you make sure that if you told them about being taken to Slave Island for two weeks and being hospitalised for a month afterwards, why would not you make sure that was in the statement that they gave to you? THE INTERPRETER: In fact they did say that certain information first has to be lodged with the police before it is lodged with them. MR KISSANE: But they have been set up as I understand it to monitor the human rights situation in Sri Lanka. THE INTERPRETER: Yes. I went there with that impression. MR KISSANE: I would have thought they would have been very interested in information from you that you had been held at Slave Island for two weeks and during that time you had been beaten so badly that you had been hospitalised for a month. THE INTERPRETER: In fact considering this was the most important information that I wanted to give them and this is why I went there, in fact whoever was there receiving the complaint and accepting the complaint were Singhalese people. Before we can record such information from you this information has to be first - this complaint has to be first made to the police before we can accept it. MR KISSANE: All right. How do you explain that when the Department of Immigration, or the delegate that considered your case, rang up the Colombo General Hospital that they had no record that you had been there for a month? THE INTERPRETER: Yes, he did ring me up, and they told me - sorry, he did tell me that he had rung up. Yes, he told me personally that this was the information he had got when he had rung up … (indistinct) … . When he rang there was a Singhalese nurse, and she was the one who said that there was no such person there, and I did tell him that if she had said that, then it was not true, and it was wrong. MR KISSANE: Why would Dr Rajakorendran say that he had never treated you, that he had just sent you off to the hospital after you told him of your history? THE INTERPRETER: In fact after that I did ring up the doctor and speak to him, and I asked him: when you have treated me, why did you give it in the letter to say that you had not treated me? MR KISSANE: What did he say to you? THE INTERPRETER: In fact the doctor explained to me that when he received the telephone call from Australia, he was afraid of - he was under the fear that this could be a call within Sri Lanka, and wanted to know some information about me, and therefore that is why he gave a reply like this. In fact, he said that if it was the small authorities of CID, and if he had given a letter amounting to that, he was afraid that some harm would come to him. In fact, he said that there had been incidences when such things have happened. MR KISSANE: Surely the doctor will know the difference between a call from someone in Sri Lanka and a call from an official in Australia. THE INTERPRETER: In fact at that time he was really busy with his daughter's wedding, and in actual fact he really could not … (indistinct) … who was talking." The Tribunal in its reasons dealt with the matter in the following way. First, it dealt with the delegate's actions: "In light of the Applicant's claims the delegate contacted Dr Rajakulendran. Dr Rajakulendran indicated that he took a history only from the Applicant and referred him to the General Hospital. The delegate also contacted the Colombo General Hospital. They did not have any record of the Applicant being a patient there for the relevant period." Second, it referred to the letter obtained from the Human Rights Task Force in consequence of his statement of complaint to it. The Tribunal noted: "The complaint makes no mention of the Applicant being beaten at the holding camp on 10 January or on any other occasion. Even more significantly the complaint makes no mention of the Applicant being held by the army at Slave Island army camp and then hospitalised for over one month." Thirdly the Tribunal then made its credibility finding and stated its conclusions in consequence. "In view of the Applicant's failure to make the complaint to the Human Rights Task Force that he was detained for fourteen days without trial, beaten and tortured and hospitalised for over one month the Tribunal finds that the Applicant's claims lack credibility. The Tribunal is confirmed in this view by the absence of any records of his hospitalisation and rejects the Applicant's suggestion that the records were not revealed to the delegate because the delegate must have been speaking to a Sinhalese as implausible. Further his failure to depart Sri Lanka immediately after his claimed release from hospital on 19 or 20 March 1996 when he already had a valid visa for Australia and his delay until late June 1996 confirms the Tribunal's view that the Applicant was not detained and hospitalised as claimed. Accordingly the Tribunal rejects the Applicant's claims of mistreatment by the police and security forces since he has been living in Colombo including the claims that he was beaten in Vavuniya, later detained for fourteen days and hospitalised for over one month. In view of the Applicant's credibility problems the Tribunal does not accept that the Applicant has suffered treatment before he left Sri Lanka that could be said to amount to persecution." The Tribunal went on to consider and then reject whether, as a Tamil, Mr Kandiah filled the profile of someone who would be of interest to the Sri Lankan authorities. The Tribunal was, in the event, not satisfied that there was a real chance that Mr Kandiah would face persecution were he to return to Colombo. Accordingly it concluded: "Having considered the evidence as a whole, the Tribunal is not satisfied that the Applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the Applicant does not satisfy the criterion set out in s 36(2) of the Act for the grant of a protection visa." (Emphasis added)