Kapugama v Minister for Immigration & Multicultural Affairs

The tribunal's findings and reasons 8 In opening the discussion of its findings and reasons the Tribunal had this to say: "Despite the huge amount of written and oral evidence, submissions and other material, the Applicant's main claim, simply put, is that he, a married Sinhalese businessman from Colombo, was questioned and tortured for 5 days in February 1995 for reasons associated with 2 particular Tamil boarders ([Arnandaraja] and [Ponnanbolam]) in his parents' home, and that even thought he was released, he was and still is, of serious interest to the authorities for reasons arising from those Tamil boarders." 9 The Tribunal referred in its reasons to independent evidence regarding the current situation in Sri Lanka. The Department of Foreign Affairs and Trade reported in December 1995 that it was not aware of any recent plausible reports of Sinhalese suspected of sympathising with the LTTE. On 28 May 1997, the Department commented that it would be "utterly implausible" for the police to impute a Sinhalese householder with an LTTE profile merely for providing accommodation to Tamils and that it was "utterly implausible" that a Sinhalese would support the LTTE. 10 The Tribunal gave a detailed account of the applicants' evidence, as set out above. It then considered whether or not that evidence was credible. It noted, citing Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348, Chen Xin He v MIEA (Nicholson J, 23 November 1995, unreported) and Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547, that "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" and was entitled to find against the applicants despite the absence of any rebutting evidence. 11 The Tribunal accepted that the applicant's parents let a room in their family home to two Tamil boarders and, through these boarders, made business contacts with other Tamils. The Tribunal stated, however, that alone this would be insufficient to show that the applicants were at risk of being persecuted because the independent evidence before it was to the effect that interaction between Tamils and Sinhalese was commonplace in Colombo. The Tribunal accepted that the applicant may have been questioned by police in relation to these boarders. 12 The Tribunal, despite commenting on the consistency of the applicants' claim, was not satisfied that the applicant's detention in February 1995, if it occurred, arose out of his association with the two Tamil boarders. The Tribunal's reasons for this finding are set out below. · Independent country information indicated that Tamils and Sinhalese often interact with each other on a daily basis in Colombo, that Sinhalese often have Tamil boarders and that such interactions would not lead the authorities to suspect that the Sinhalese involved supported the LTTE. The evidence suggested that young Tamils from the north and east, not Sinhalese, were of interest to the authorities. It is very rare for Sinhalese to be suspected of supporting the LTTE, even where their boarders or business associates were suspected. · The applicant's claim that the authorities continued to regard him with serious and ongoing suspicion because of activities that are commonplace in Colombo, was implausible. · Mr Kapugama's account of his detention and mistreatment and the ongoing interest in him was implausible. In particular, the Tribunal commented on the suddenness of the authorities' interest in him, the fact that they did not question any other members of the family and the vague, contradictory and confused nature of some of the evidence presented. · The Tribunal found it odd that the authorities, in searching for Mr Kapugama, would limit themselves to visits to his home. It felt that he could be more easily located by other means such as through his bank or business associates, through checkpoints on routes into and within Colombo, though his wife at her workplace or at her sister's place or through the child's school. · The applicant's claim that he was of serious interest to the authorities was inconsistent with his being released by the authorities after five days and with his being able to obtain a passport in his own name and depart the country legally. · The Tribunal found it implausible that Mr Kapugama, had he been tortured as claimed, would not have gone further than he did to seek redress. In reaching this conclusion, the Tribunal decided that the report made by the applicant's father to the police in May 1996 and the correspondence between the applicant's father and the Sri Lanka Foundation Human Rights Centre did not assist the applicants' case. Independent country information suggested that means of redress were available in Sri Lanka to those who felt that their rights had been abused. 13 The Tribunal rejected the applicant's claim that he had a well-founded fear of persecution by reason of his association with Somasunderam, who had been arrested. It noted in relation to this claim that: · Mr Kapugama had only few business dealings with Somasunderam, all of which were prior to February 1995; · a significant amount of time had elapsed since Somasunderam's arrest; and · there was no indication that Somasunderam's landlord, in whose house an arms cache was found, had any problems with the authorities. 14 The Tribunal did not consider that the circumstances of the applicants' departure from Sri Lanka would create problems for them on their return as they had left legally on a valid passport. In addition, it did not accept the applicant's claim that he would be of continuing interest to the authorities as a result of his having provided accommodation to the two Tamil boarders. The Tribunal was not satisfied that isolated incidents and neighbourhood suspicion would be sufficient to amount to persecution under the Convention. The Tribunal rejected the claim that stones had been thrown at the family home because of the inconsistencies between the evidence of the applicant and his mother. The Tribunal stated that, in any event, the applicants would be able to relocate to another part of Colombo. 15 The Tribunal considered Mrs Kapugama's separate claims, but was not satisfied that the incidents amounted to persecution or that her fear of the police was well-founded. The Tribunal also considered the incident regarding the delivery of a package to the child's school, but was not satisfied, in light of the vague and contradictory evidence, that it was persecutory or gave rise to a well founded fear of persecution. 16 The Tribunal accepted the evidence of the applicants in relation to the demands for money by Tamils in 1995. However, noting that nothing further had been heard from the Tamils involved since November 1995, despite the fact that no money had been paid, the Tribunal was not satisfied that the applicants had a well-founded fear of extortion or reprisal from these Tamils on their return to Sri Lanka. In relation to the claim that the applicants might be at a greater risk of extortion because of the presumption that they would have earned hard currency while overseas, the Tribunal noted that such extortion would not be for a Convention reason. 17 Finally, the Tribunal addressed the applicant's claim that he had been persecuted as a result of his political opinion, learned from his parents, that racial discrimination is wrong. The Tribunal noted that the applicant's parents and brother have never had any serious problems in relation to this and that, prior to 1995, neither did the applicant. It referred to the Sri Lankan constitution and to independent evidence and concluded that such an opinion was not the cause of any problems encountered by the applicants.

application for an order of review 18 A fully particularised amended application for an order of review was filed by the applicant on 28 February 2001, pursuant to leave given by Registrar Hedge on 14 December 2001. The grounds set out in the application for an order of review are: 1.the Tribunal based its decision on the existence of particular facts which did not exist (s 476(1)(g)); 2.the Tribunal failed to set out its findings on material questions of fact as required by s 430(1)(c) and failed to observe requisite procedures (s 476(1)(a), made a decision not authorised by the Act (s 476 (1)(c)) and incorrectly interpreted the applicable law (s 476(1)(e)). 3.the Tribunal failed to properly apply the "real chance" test as to whether the applicant had a well founded fear of persecution (s 476(1)(a), s 476(1)(e)).

No evidence 19 The applicant claims that there are a number of findings of fact on which the Tribunal's decision is based (either together or separately) and which do not exist. In the absence of those facts it is claimed that there is no evidence to justify the making of the Tribunal's decision. 20 The first of the findings of fact challenged by the applicant relates to the reporting of the applicant's mistreatment to the police. According to the applicant, the Tribunal found that the first report to the police of the detention, questioning and mistreatment that the applicant suffered in February 1995 was made in May 1996, well over a year after the alleged detention. The applicant contends, however, that the evidence before the Tribunal was that the first complaint was made to the police in 25 August 1995. He relies on the fact that the police report dated 25 May 1996 states, inter alia, "On 25-8-1995 I made a complaint to this police CIB IV - 232 / 368.". The Tribunal's comment was: "The tribunal finds that the report made by the Applicant's father to the Police does not assist the Applicant's case; the report was allegedly made in May 1996, well over a year after detention and torture of the Applicant and its purpose is unclear especially given the extremely vague content." 21 The respondent submitted that the Tribunal did not make any express finding that the report made in May 1996 was the first report made to the police and, to the contrary, had referred earlier in its reasons to the fact that a complaint was made on 25 August 1995. The respondent is clearly correct in submitting that the Tribunal did not make the error alleged and in relation to this finding the applicant's claim cannot succeed. 22 The second finding of fact challenged by the applicant relates to the applicant's father's complaint to the Sri Lanka Foundation Human Rights Centre. In relation to this issue the Tribunal made the following comment: "The Tribunal finds that the letter of complaint written by the Applicant's father to the lawyer, and resultant correspondence, also does not assist the Applicant's case. The initial letter was written in March 1997, 3 years after the Applicant's alleged detention and torture and it is incredibly vague in relation to what happened to the Applicant and when, about the background to his alleged detention and torture and about the alleged inquiries about him from unknown people. The Tribunal is satisfied that the report and letter are not serious attempts to seek inquiry and redress." 23 Mr Knoll, counsel for the applicant, pointed out that the one error in this passage is the reference to 'three years'; March 1997 is, in fact, just over two years after February 1995. Secondly, Mr Knoll took exception to the Tribunal's description of the report and submitted that the "purpose of the report appears on its face, that is 'future safety' and presents a series of facts all of which substantially reflect the claims of the Applicants." It would appear that the reference to "future safety" appearing on the face of the report is an error. There is a heading in these words on the certified translation of the police report made by the applicant's father but not on the complaint to the Human Rights Centre. Be that as it may, this challenge cannot succeed. The error in the dates is clearly not a material error and the comments describing the report go to the weight attached to this evidence, a matter peculiarly within the purview of the Tribunal. 24 The third finding of fact that the applicants say does not exist is that no-one searched for Mr Kapugama in the year or two after his detention. The complaint relates to the following passage in the Tribunal's reasoning: "The Applicant then stated, contrary to much of his other evidence, that they didn't search for him in the year or two after his detention; everything happened when investigations were undertaken, for example about S in 1997, and had he been there then he too would have been arrested" 25 Mr Knoll referred in his submissions to passages from the transcript of Mr Kapugama's hearing before the Tribunal where he stated that he was searched for earlier than this. In response, Mr Jordan, counsel for the Minister, pointed out that that the Tribunal's comment was made in the context of a detailed summary of the applicant's evidence. He submitted that the Tribunal's comments about inconsistencies in the evidence are not 'particular facts' for the purposes of s 476(4)(b); Mohammed v Minister for Immigration & Multicultural Affairs [2000] FCA 264 at [15]. It was also submitted for the respondent that the applicants have not proven that the fact does not exist, because they have failed to place before the court a complete copy of the transcript of the Tribunal hearing. 26 Mr Knoll made two points concerning the applicants' written submission to the Tribunal dated 6 July 2000. That submission attached recent press reports about which the Tribunal made the following comment: Recent press reports were enclosed reconfirming the instability as well as the current policy of the authorities to monitor and take punitive action also against Sinhalese suspects. However, the Tribunal notes that only in one of the articles ("Theories abound on Wattala bomb") is there any mention of Sinhalese; this was speculation that a Sinhalese carpenter, bankrupt and from outside Colombo, may have assisted the LTTE by knowingly or not, carrying the bomb, and that he may have done so because he was desperate for money." 27 Mr Knoll submitted that this "finding" was incorrect in two ways. First he pointed to a number of other articles that had been submitted to the Tribunal and which mentioned Sinhalese in the context of sympathisers with the LTTE. The respondent reiterated the submission that these comments were made in the course of summarising evidence and were not findings on which the decision was based within the meaning of s 476(4)(b) of the Act. In addition, it seems that in the above extract the Tribunal's comments were directed to "recent press reports" that had been enclosed with the written submissions dated 6 July 2000. 28 Mr Knoll also submitted that four of the enclosed articles referred to Sinhalese involvement with the LTTE. Again, the respondent submitted that this was not a 'particular fact' as contemplated by s 476(4)(b). Further, the respondent submitted that the comment of the Tribunal referred to by Mr Knoll was subsumed by a later comment that, "The Tribunal does not accept as plausible or consistent with independent country information, that the authorities generally suspect Sinhalese of LTTE involvement." 29 Finally, Mr Knoll submits that the finding that the Amnesty International report on torture in custody exclusively refers to Tamils is a finding of a fact that does not exist. The applicants submit that one section of the part of the report dealing with torture of political prisoners does not refer exclusively to Tamils. Again, the respondent submits that observations about evidence are not particular facts for the purposes of s 476(4)(b) of the Act. It was also submitted that the Tribunal's summary of the report was one that was open to it. 30 Although Mr Jordan addressed each of the instances put forward for the applicant, his main submission was that the whole approach taken by the applicants was misconceived. In his submission, the applicants' case consisted of construing the Tribunal's decision "minutely and finely with an eye keenly attuned to the perception of error" contrary to the dictum of the Full Court in Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287. This dictum was accepted by the High Court (Brennan CJ, Toohey, McHugh and Gummow JJ) in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 where their Honours commented: "These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed." 31 I have set out the submissions made on behalf of the applicant in some detail in order to demonstrate the level of analysis involved in them. This shows, in my opinion, that the respondent's submission concerning the approach adopted by the applicants is correct. The errors pointed to are inconsequential and most of the comments seized on are observations on the evidence and not part of the Tribunal's findings. I have already commented on the first two findings challenged by the applicant. The last four findings all relate to comments made by the Tribunal in summarising the applicant's evidence. While I would not suggest that findings of fact are always neatly to be found under the heading "Findings and Reasons", in this case the comments referred to are at the most preliminary observations and not findings of fact. The Tribunal's decision was not based on those facts and therefore the applicants are not able to surmount the hurdle of s 476(4)(b). 32 It is also worth pointing out that, even if the applicant were to succeed in establishing that the Tribunal had made findings of fact that do not exist, it would still be necessary to show that there is no evidence to justify the making of the Tribunal's decision. This point was made most recently by a Full Court in Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181 at [31]: "In order to satisfy the ground contained in s 476(1)(g) it is necessary, but not sufficient, to satisfy the requirements of s 476(4). Section 476(1)(g) requires that there be no evidence or other material to justify the decision. That, however, does not involve a qualitative assessment, in an application to the Court for review, of the evidence and material before the Tribunal. If it did justify such an approach, review by the Court would entail a reconsideration of the weight that should be given to the evidence and other material before the Tribunal." 33 In my opinion, the approach adopted by the applicant comes very close to requesting the Court to make a qualitative assessment of the evidence and material before the Tribunal. For all of these reasons, to the extent that it is based on s 476(1)(g), the applicants' challenge cannot succeed.

Failure to observe the requisite procedures 34 The applicant's amended application cites four matters with respect to which the Tribunal failed to make findings namely: "1 …whether threats to the first Applicant by the Police of future arrest and torture and branding of the first Applicant as a Sinhalese Tiger supported the well-foundedness of the first Applicant's fear of persecution; 2 …whether the Applicant's claim that future non-discrimination practised upon return to Sri Lanka exposed him to a real chance of further acts of persecution should he associate with Tamil terrorists again without suspecting them of LTTE involvement; 3 …whether he was exposed to a real chance of further acts of persecution because the Police had come in search of the first Applicant in Kandy, and thereby continued to have an interest in his whereabouts after the Applicants had left Sri Lanka; 4 …whether physical evidence of torture, namely, the first Applicant's dislodged teeth when added to the matters which did not of themselves satisfy the Tribunal of the first Applicant's arrest, detention and torture, would satisfy the Tribunal of the first Applicant's arrest, detention and torture." 35 The applicant also submitted that the Tribunal made two further reviewable errors, being that it misstated the extract from the police report (see [20] above) and that it found itself "unable to draw any inference" from the evidence of an unknown delivery person calling upon the applicant's child at school. 36 I do not find it necessary to deal with each of these issues in detail. The respondent's submission was that none of these issues were material facts because the Tribunal's decision did not turn on them. This submission recognises the principle articulated by the majority of a Full Court in Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 at [56], that: "a requirement to set out findings on material questions of fact, and refer to the material on which the findings are based, is not to be translated into a requirement that all pieces of conflicting evidence relating to a material fact be dealt with." 37 The Tribunal's view of the crux of the applicant's claim is quoted at [8] above. It concluded, in relation to this claim, that it was not satisfied that any detention of the applicant was related to the Tamil boarders in the family home or to any imputed sympathy for the LTTE. It did not accept that he was of any continuing interest to the Sri Lankan authorities or that, by associating with Tamils, a Sinhalese would become of interest to the Sri Lankan authorities. These conclusions were reached on the evidence before the Tribunal, including the medical evidence, and were open to it. It is not to the point that another decision maker may have come to a different conclusion on that evidence. The Tribunal did not need to make specific findings in relation to the four matters enumerated by the applicant; they follow from findings that the Tribunal had explicitly made and were, therefore, not material to the Tribunal's decision. 38 I have already discussed the applicant's submission in relation to the extract from the police book. In relation to the claim arising out of the incident that occurred at the third applicant's school, the Tribunal had stated: "It was also claimed that sometime in 1995 an unknown person tried to take a food parcel to the Applicant child at school. This claim was also presented as a delivery driver trying to deliver a package to the child at school and as a man calling at the school to talk to the child. It is not clear from the evidence who called at the school, when or why. The Tribunal finds the evidence about this matter vague and rather contradictory and it is unable to draw any inference about it. The Tribunal is not satisfied, on the basis of the evidence, that the incident was in any sense persecutory, or that it gives rise to a well-founded fear of being persecuted." 39 Mr Knoll submitted that the Tribunal had not made a finding about this incident, but rather had expressed a difficulty with drawing a conclusion. However, although the Tribunal used the words "unable to draw any inference", in the context of the above passage, it is clear that it did make a finding, being that it was not satisfied that the incident was persecutory. It gave reasons for that finding, being that the evidence was vague and contradictory. Mr Knoll submitted that the incident, in context, should be seen as persecutory and contributing to the applicants' fear; however, it is not for this Court to review the Tribunal's findings on their merit.

Failure to apply the 'real chance' test 40 The final ground of appeal raised for the applicant was that the Tribunal had failed to apply the "real chance" test in accordance with the decisions of the High Court in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 and Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559. Mr Knoll submitted that the Tribunal was in error in that it failed to assess the likelihood of the applicant being detained on his return in Colombo, the likelihood of his being persecuted if so detained and whether there was a real chance of mistreatment occurring for a Convention reason. 41 A decision maker must not foreclose reasonable speculation about the chances of persecution occurring in the future. Such speculation will reasonably arise where the decision maker is uncertain as to whether an alleged event occurred. However as Sackville J, with whom North J agreed, commented in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [67]: "If a fair reading of the reasons as a whole shows that the [Tribunal] itself had 'no real doubt' … there is no warrant for holding that it should have considered the possibility that its findings were wrong. Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent without the [Tribunal's] own findings to be pursued." 42 In the same case, Kenny J expressed a similar view at [137]. In support of this ground of review, Mr Knoll referred to the following statement made by the Tribunal: "It may be that the Applicant was detained and possibly mistreated for some reason that the Tribunal is unable to speculate about, but the Tribunal is not satisfied on the available evidence that the Applicant has experienced or will experience persecution for any Convention reason, because of his and his family's connections with [Arnandaraja] and [Ponnanbolam]. The Tribunal does not accept that the Applicant's failure to provide any further information about [Ponnanbolam], or his absence from home and from Sri Lanka, or the arrest of [Somasunderam], individually or cumulatively, give rise to any real chance that the Applicant will be of any interest to or persecuted by, the authorities on his return. The Tribunal does not accept that the Applicant wife is or will be of any interest to the authorities or that she will be persecuted, on their return. 43 In my opinion, this passage does not support the applicant's ground of review. On the contrary, in this passage, as generally throughout its reasons, the Tribunal expresses its conclusions unequivocally. That being so, there is no obligation on the Tribunal to speculate on the possibility that it has come to the wrong conclusion. 44 For the above reasons, the application is dismissed with costs. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 6 March 2001, 26 March 2001