James v Minister for Immigration & Multicultural Affairs

"[T]he applicant was willing to approach the police of his own volition even at a time when massive roundups and detentions of Tamil youths were taking place in Colombo in the wake of the Central Bank bombing, and to raise such a senstitive and potentially incriminating matter as the absence of his identity card."

This lack of fear by the applicant was reinforced, in the Tribunal's opinion, by the applicant's travels to India in 1987, 1989, June 1994 and January 1995. Each trip was of about two weeks duration. The applicant used his own passport. When asked why he did not flee earlier, the applicant stated that the fall of Jaffna to the Sri Lankan armed forces would increase the likelihood of his previous links with the LTTE being discovered. The failure of the applicant to mention this in any previous submissions was seen as further evidence of concoction. The Tribunal found further contradictions in the oral evidence given by the applicant and his brother. It accepted that the applicant had an association with the LTTE between 1984 and 1987, that he was beaten in August 1991 and detained and beaten in April 1995, and that police raided his home in August 1995. However, the August 1991 and August 1995 incidents were regarded as instances of brutal or corrupt individuals taking advantage of a situation rather than attention directed at the applicant because of an imputed political opinion. The April 1995 incident may have indicated the applicant was under some suspicion, but that suspicion was dispelled and the applicant released once it was confirmed that he did indeed work at a bank. 4 The Tribunal accepted that Tamils in Colombo were subject to frequent harassment in the form of raids, searches, threats, accusations and intimidation. These matters did not, in the Tribunal's opinion, amount to persecution. However, arbitrary detention (which was capable of amounting to persecution) was found to occur. Those for whom arbitrary detention was a real chance were:

"[Y]oung Tamils (especially, though not exclusively, males); recently from the Jaffna area; lacking connections with Colombo; lacking family or other support in Colombo; lacking a stable employment history; lacking an identity card and having no means of establishing identity; unable to speak Sinhala; having a recent connection with the LTTE or grounds on which the authorities might suspect such a connection.

[A] detained Tamil does not face a real chance of mistreatment amounting to persecution except insofar as the criteria to which I have referred above apply."

The applicant was over 30, not recently from Jaffna, living in Colombo with a good employment history, and without recent connections with the LTTE. He had connections with respectable citizens. He either had his identity card or a statement from the police he could use in its stead. The lack of family within Colombo and an inability to speak Sinhala were seen to be outweighed by the other considerations. The Tribunal therefore considered that the applicant did not fall within the category of Tamils who face a real chance of persecution. GROUNDS OF REVIEW 5 There are two grounds of review:

1. That at the time of making the decision the Tribunal member was affected by actual bias within the meaning of s 476(1)(f) of the Migration Act 1958 (Cth) ("the Act").
2. That the decision involved an error of law within the meaning of s 476(1)(e) of the Act, namely an error in interpreting or applying the definition of a refugee. Actual bias 6 Section 476(1)(f) of the Act provides for review of a judicially reviewable decision on the ground that "the decision was induced or affected by fraud or by actual bias." The applicant contended that, "[a]t the time of making the decision, the Member constituting the Tribunal held preconceived views concerning applicants for review of protection visa" decisions. This contention arises from the fact that in 1997 the Member had published on the Internet adverse remarks about the truthfulness of some applicants for protection visas. He expressed the view that applicants "are usually deserving cases and decent human beings even if they lie through their teeth (as they often do) in their desperation to find a better life". Later he referred to "applicants who weave webs of lies". The full text of the Member's remarks, so far as relevant to this ground of review, are set out by Heerey J in Ferati v Minister for Immigration and Multicultural Affairs (1998) 54 ALD 381 and by Ryan J in LSLS v Minister for Immigration and Multicultural Affairs [2000] FCA 211. 7 The applicant in Ferati was an ethnic Albanian, born in Kosovo, and the Tribunal Member found that it was arguable that any Albanian faced a real chance of persecution by reason of race or nationality. However, the Member also made findings of fact adverse to the applicant on the basis of the applicant's credibility. Heerey J at 383 was of the opinion that the Internet remarks did not show "actual bias in the sense of bias held by [the Member] against this particular applicant." His Honour held that there was "a clear case of apprehended bias" and as such there had been "a failure to act accordingly to substantial justice". The requirement to act according to substantial justice is found in s 420(2)(b) of the Act, and until the decision of the High Court in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 it was thought to be a procedure with which the Tribunal was obliged to comply for the purposes of s 476(1)(a) of the Act. Since Eshetu an applicant must show that the Tribunal's decision was affected by actual bias. The applicant contended that because of the availability of s 420 as a ground of review at the time of Ferati, it was not necessary for Heerey J to consider the possibility of actual bias, so that his Honour's conclusion about actual bias was obiter. 8 The applicant's case before the Tribunal turned on the extent to which the Member believed the applicant's claims. The Member found that the applicant's claim that he decided to leave Sri Lanka only after the Central Bank bombing was inconsistent with his actions in contacting his brother about leaving before the bombing. The applicant's failure to explain to the Member's satisfaction why he had not fled Sri Lanka earlier was also held against him. From these findings, the Member rejected the applicant's other statements. Counsel for the applicant submitted that the Member took such a sceptical attitude to the answers given by the applicant about his reasons for leaving Sri Lanka that it was clear that the Member was not approaching the case with an open mind. 9 Actual bias involves something more than a real likelihood of bias. In Jia Le Geng v Minister for Immigration and Multicultural Affairs [1999] FCA 951 at par 158 R D Nicholson J said:

"[F]or actual bias to be established there must be evidence of "a closed mind to the issues raised", "preliminary views incapable of alteration", prejudgment of the case at least in some respect, real although not necessarily intentional."

See also the decision of the Full Court (Drummond, Mathews and Mansfield JJ) in T v The Minister for Immigration and Multicultural Affairs [2000] FCA 467. Actual bias may be established as an inference from the circumstances of the hearing and disposition of a case. A series of actions by the decision‑maker may, when taken together, form a whole picture leading to the conclusion of pre‑judgment: Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 135. That case also shows that actual bias may exist without being consciously acknowledged, recognised or intended by the decision maker: at 127 and 135‑136. Bias was found in that case because of a series of findings against the appellant based on flimsy grounds and in the face of considerable evidence. In his discussion (at 127‑133) Burchett J characterised some of the findings variously as "extraordinary", "absurd" and "astonishing". 10 Some five months before the Tribunal member heard the application in the present case the Internet passages quoted in Ferati had been replaced by a statement that "various items on this page have had to be deleted recently due to my position as Member of the Refugee Review Tribunal and will remain deleted for the duration of my holding that position". The applicant submitted that this statement was evidence that the Member had not changed his views, and that they continued to affect the Member's approach. Counsel took me to the transcript of proceedings before the Tribunal, and submitted that "the tribunal is not approaching the case with an open mind but is presuming that if there was not a mention of Jaffna falling to the forces in the earlier submissions, that is because this is something that has been concocted by the applicant". Counsel sought to reinforce this submission by reference to an earlier hearing of the application, before another tribunal member, to indicate the different approaches that could be taken. As I indicated at the time, I felt this latter excursion was not helpful. Having read the transcript of proceedings I can find no evidence that the Member gave the applicant less than a full opportunity to make his submissions or that the Member had prejudged the issues before him. 11 While the Tribunal Member rejected parts of the applicant's account, he made a series of important findings of fact in the applicant's favour as to harassment by the Sri Lankan police. However, there were discrepancies in the applicant's evidence, and the Member found these fundamental to the issue of credibility. Ultimately the applicant's case came down to the published views of the Member, and a decision with which the applicant disagreed. Unlike the findings of the Tribunal in Sun Zhan Qui and the evidence upon which those findings were based, I do not consider the findings in the present case to be indicative of actual bias. I agree with Heerey J in Ferati that actual bias based on the Tribunal Member's earlier entry on the Internet is not made out. Ryan J was of the same view in LSLS at par 52. There are no additional factors arising out of the conduct of the proceedings that, when combined with the former Internet entry, disclose a mind closed to the issues raised or the existence of preliminary views incapable of alteration. Errors of law The first error 12 The applicant contended that in three respects the Tribunal erred in interpreting or applying the words "well‑founded fear of persecution for reasons of race … or political opinion". The first alleged error was that having accepted that the applicant had been detained and beaten in August 1991 and April 1995, the Tribunal failed to conclude that the applicant had suffered persecution within the meaning of the Convention. This was said to be because these incidents amounted to persecution by reason of imputed political opinion, and arguably by reason of the applicant's race. It was pointed out that persecution includes detention and significant deprivation of liberty. See, for example, Chan v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 390, 416. In the course of argument it emerged that the real complaint was that the Tribunal was obliged to make a finding whether the ill‑treatment of the applicant was persecution for a Convention reason, and that it failed to do so. 13 The Tribunal was obliged to make findings as to whether the applicant was ill‑treated as he alleged. If it so found, it was obliged to determine whether the ill‑treatment constituted persecution for a Convention reason. Evidence that he had been so persecuted in the past would have supported his case that he had a well‑founded fear of Convention based persecution in the future. See Abebe v The Commonwealth (1999) 162 ALR 1 at 25. The Tribunal accepted that the applicant had been beaten on two occasions and detained on the second, but concluded that this was not, as he claimed, because of an imputed LTTE profile. The Tribunal noted that · the applicant had not done anything to assist the LTTE since at least 1987 · the assistance he rendered at that time was minimal, non‑violent and low profile · since 1987 he has been entirely non‑political and has led a "respectable law‑abiding life" away from Jaffna. The Tribunal said that in the light of these and other matters "there is no reason for the authorities to have an adverse view of him". The Tribunal continued:

"It is consistent with this that the authorities have not in fact shown any serious interest in him. The 1991 bashing appears to have been an act of particular individuals rather than an instance of official attention. The incident of April 1995 may indicate that there was initially some suspicion of him (though it may also have been just part of a random check on Tamils), but evidently any suspicion was quickly dispelled after routine checks were made at the bank at which the applicant worked. The incident of August 1995 seems to have been a case of corrupt police officers taking advantage of an opportunity, not a case of attention directed at the applicant for reasons of imputed political opinion."

The emphasis is mine. The expressions "no reason for the authorities to have an adverse view of him", "the authorities have not in fact shown any serious interest in him" and "any suspicion was quickly dispelled", occur in the context of an examination of whether the applicant had "a profile as a supporter of the LTTE". Thus the "adverse view" is a view based on that profile, the "serious interest" is an interest based on that profile, and the "suspicion" is a suspicion based on that profile. Although the emphasised words in the last sentence of the passage quoted are directed to the August 1995 incident (on which for the purposes of the present submission the applicant did not rely), those words confirm that the earlier less distinct expressions are a rejection of the claim that the incidents relied on and accepted by the Tribunal were motivated by the applicant's imputed profile as a supporter of the LTTE. 14 The Tribunal then referred to the alleged incident of 2 February 1996. The Tribunal doubted whether this event occurred, but assuming it did, concluded that the applicant's willingness to approach the police about his missing identity card indicated that he had no real fear of the authorities at the time, and their co‑operation with him indicated that they "did not have an adverse profile of him". In their context those last words refer to an adverse profile as a supporter of the LTTE. The Tribunal added that if the applicant had an "adverse political profile", he would not have been able to continue working in an office next to that of the Minister for Defence and very close to the offices of the governing political party. The applicant started working at the bank in 1990, before the 1991 incident and well before the April 1995 incident. The Tribunal then noted that the applicant travelled to India in 1987 and 1989 (ie before the 1991 incident) and in 1994 and January 1995 (ie after the 1991 incident and before the April 1995 incident) on his own passport and without difficulty. This, said the Tribunal, indicated a lack of official interest in the applicant. Again, that is a reference to a lack of interest in the applicant as a person with an adverse profile as a supporter of the LTTE. 15 In the light of the foregoing it is impossible to sustain the submission that the Tribunal failed to make a finding as to whether the two incidents it accepted had occurred were motivated by the authorities' opinion that the applicant was a supporter of the LTTE and thus had a political profile. The Tribunal clearly found they were not so motivated. 16 The applicant's alternative case before the Tribunal was that he had been ill‑treated in 1991 and in April 1995 because he was a Tamil. The Tribunal accepted that he had been ill‑treated. It did not accept that the 1991 event was an instance of official attention. Rather it was an act of particular individuals. Later the Tribunal noted that the applicant's account of his treatment in 1991 (and April 1995) was broadly consistent with the country information on the treatment of Tamils in Colombo. That information disclosed that Tamils in Colombo are subject to frequent harassment in the form of raids, house searches, threats, accusations and intimidation by the police. The Tribunal observed that these matters did not, in its opinion, amount to persecution. The Tribunal accepted that the April 1995 incident occurred either because the police thought the applicant might have some LTTE profile or because he was caught up in a random check on Tamils, but said he was quickly released after a routine check at the bank. Later the Tribunal said that while the temporary detention for checking purposes that the applicant may well experience upon return to Sri Lanka would no doubt be linked to his race as a Tamil, it would not be an instance of persecution. This was because, in the Tribunal's view, brief detention is not a sufficiently serious matter to amount to persecution, and brief detention followed by early release is all that most Tamils will experience. Given that what the applicant experienced in April 1995 was just such a brief detention followed by early release, it is clear that the Tribunal found that the detention had occurred, that it may well have been due to the fact that the applicant was a Tamil, but that it did not amount to persecution. 17 It is thus clear that the Tribunal was of the opinion that the 1991 and April 1995 incidents did not amount to persecution. In view of this it was unnecessary for it to come to a concluded view as to whether the ill‑treatment was motivated by the applicant's race. The second error 18 The applicant's second complaint is that having found that the ill‑treatment in 1991 and April 1995 amounted to persecution for a Convention reason, the Tribunal failed to ask whether there was a real chance that it might recur. It was said that the Tribunal's findings about the 1991 bashing (not official attention) and the April 1995 detention (suspicion removed by check with bank) make clear that it failed to apply the real chance test. The short answer to this complaint is that the Tribunal did not find that the ill‑treatment in 1991 and April 1995 amounted to persecution for a Convention reason. The whole point of the applicant's first ground of review is that the Tribunal erred in not so finding. There is no substance in the claim that the Tribunal failed to apply the real chance test. As I have said, the Tribunal accepted that the applicant had been beaten on two occasions and detained on the second, but concluded that this was not because of an imputed LTTE profile. In support of this conclusion the Tribunal noted the three matters referred to in par 13, the travel to India referred to in par 14, and the following: · the applicant held down a respectable job at the bank in Colombo for five years during which time he received very little attention from the authorities · if he had an adverse political profile he would not have been able to work undisturbed at the bank which was next to the Ministry of Defence and close to the offices of the governing political party · when he left Sri Lanka for Australia he did so on his own passport and without experiencing any difficulty. 19 As noted in par 3, the Tribunal regarded the August 1991 incident as the act of particular individuals rather than an instance of official attention, and concluded that while the April 1995 incident might have indicated initial suspicion of the applicant, that suspicion was quickly dispelled after checks were made at the bank. On the basis of the seven matters noted in par 18, the Tribunal concluded that the applicant's minimal association with the LTTE in the past would be of no current interest to the authorities, even if they were to discover them. Given that the association occurred so long ago, it was highly unlikely that such a discovery would be made. The Tribunal ultimately concluded that "the applicant does not have an imputed pro‑LTTE profile in Sri Lanka, and therefore does not face a real chance of persecution there on this ground". Thus, the Tribunal accepted the applicant's account of the incidents, but decided this aspect of the case against him because it concluded that he had no political profile so that any persecution he might fear based on his past experiences would not be by reason of his political opinion. As the matters noted in par 18 show, there was ample material to support the Tribunal's conclusion on this point. As I have pointed out, the submission that the Tribunal erred in law in the manner described assumes, contrary to the Tribunal's finding, that the applicant did have a pro‑LTTE profile and was mistreated because of that profile. 20 The claim that the Tribunal failed to apply the real chance test in relation to the applicant's race based fear is not made out. The Tribunal referred to a body of material post‑dating the applicant's departure from Sri Lanka, including cables from the Australian High Commission in Colombo, a State Department Country Report on Sri Lanka, DFAT cables, an Amnesty International report, and the UNHCR guidelines on newly arriving Sri Lankan asylum seekers, and concluded that not all Tamils face a real chance of persecution on the basis of their ethnicity. Those at risk had the characteristics set out in par 4. The applicant did not contend that the documents and publications to which the Tribunal referred did not support its conclusions, and I was not taken to any of that material, most of which was not in the papers before me. The material that was before me supported the Tribunal's characterisation of those at risk, though it did not mention not speaking Sinhala. For the reasons summarised in par 4, the Tribunal concluded that because the applicant lacked most of the characteristics shared by the "at risk" group, he did not face a real risk of race‑based persecution in Sri Lanka. The Tribunal noted that the applicant did not at present have any family remaining in Colombo, a matter to which it understandably gave little weight in view of his employment and residential connection with Colombo. It also noted that the applicant did not speak Sinhala. It concluded that both those factors were outweighed by the absence of the other characteristics. As with the political opinion submission, this alternative submission assumes that the applicant had suffered persecution for a Convention reason. The Tribunal's finding to the contrary was open on the material before it. The third error 21 The third alleged error of law was expressed as follows:

"Given that the applicant, on the facts found by the Tribunal, must in law be taken to have suffered persecution for a Convention reason, the Tribunal's further finding that it 'accepts that Tamils are targeted for detention on the basis of ethnicity, and that there is a real chance that any given Tamil will experience such detention' must necessarily mean that this applicant faces a real chance of persecution on return. The Tribunal has erred in law in apparently presuming that detention, even repeated, for reasons of race, does not amount to persecution."

As I have pointed out, the Tribunal did not find that the applicant suffered persecution for a Convention reason. There was material before it on the basis of which it could properly so conclude. Thus the assertion that it "must be taken" to have found that the applicant was persecuted for a Convention reason must be rejected. The starting point for the submission thus disappears. Further, the Tribunal did not presume that detention for reasons of race does not amount to persecution. It found that not all Tamils face a real chance of experiencing serious arbitrary detention that would amount to persecution, and concluded the applicant did not because he did not fall into the class of Tamils who were of interest to the authorities. That finding was open to the Tribunal for the reasons I have given. See par 20 above. 22 The applicant took exception to the Tribunal's statement that

"If all or most Tamils detained were then subjected to mistreatment amounting to persecution, it would indeed follow that all Tamils face a real chance of race‑based persecution. However this is not the nature of the evidence. Rather, the evidence indicates, in my view, that a detained Tamil does not face a real chance of mistreatment amounting to persecution except insofar as the criteria to which I have referred above apply."

This passage was said to be obnoxious to Chan at 390, 399‑400, 429‑430. At those pages are to be found statements about the type of conduct that may amount to persecution, including detention. But Chan does not establish that all detention is persecution. See at 388 and 416. In Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 258 McHugh J said:

"Conduct will not constitute persecution, however, if it is appropriate and adapted to achieving some legitimate object of the country of the refugee. A legitimate object will ordinarily be an object whose pursuit is required in order to protect or promote the general welfare of the State and its citizens. The enforcement of a generally applicable criminal law does not ordinarily constitute persecution. Nor is the enforcement of laws designed to protect the general welfare of the state ordinarily persecutory even though the laws may place additional burdens on the members of a particular race, religion or nationality or social group. Thus a law providing for the detention of the members of a particular race engaged in a civil war may not amount to persecution even though that law affects only members of that race."

In Paramananthan v Minister for Immigration and Multicultural Affairs (1999) 160 ALR 24 at 34 Wilcox J said:

"I do not suggest it is an act of persecution, within the meaning of the Convention, for the Sri Lankan police or army to select people for questioning about the LTTE on the basis of their perceived Tamil ethnicity ‑ after all, LTTE is a Tamil nationalist organisation ‑ and to detain them for that purpose for a reasonable time."

23 What the Tribunal meant by "detention" in the passage impugned is shown by what it later said:

"While the detention for checking purposes which the present applicant may well experience upon return to Sri Lanka is no doubt linked to his race as a Tamil, it is not an instance of persecution, even if the motivation of the authorities would be malevolent against Tamils, because brief detention is not a sufficiently serious matter to amount to persecution. As explained above, brief detention followed by early release is all that most Tamils will experience in Sri Lanka."

The emphasis is mine. The words "as explained above" are a reference back first, to the Tribunal's earlier statement that the round‑ups and checks of Tamils are not, in the vast majority of cases, aimed at harassing Tamils, but represent a reasonable response to the threat of LTTE terrorism, and secondly, to the quoted remarks of Davies J in Paramananthan that "acts done in protection of the community in the course of identification or punishment of criminals or terrorists would not ordinarily be seen as persecution of the individuals affected". And as the Tribunal pointed out, the applicant fell within the words "most Tamils" because he did not have the characteristics that rendered him liable to more serious treatment. A Tribunal's reasons must be read fairly and as a whole. When that is done, it is apparent that in the passage the subject of criticism by the applicant the Tribunal was not espousing any general notion that detention without more is not persecution. Rather it was observing that the type of detention the applicant might suffer, namely brief detention for checking purposes related to the threat of LTTE terrorism followed by release, was not an example of persecution. CONCLUSION

24 None of the grounds of review has been made out, and the application must be dismissed. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Solicitors for the Applicant: Ravi James & Associates

Solicitor for the Respondent: Australian Government Solicitor