Mariathasan v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT BEAUMONT J: INTRODUCTION 1 This is an application for an order of judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") affirming the decision of the Minister for Immigration and Multicultural Affairs ("the Minister") refusing to grant the applicants protection visas. The first applicant is a 65 year old citizen of Sri Lanka. The second applicant, his wife, is a 64 year old citizen of that country. They arrived in Australia on 21 February 1998. In April 1998 they applied for protection visas. In May 1998 the Minister's delegate refused their application. On their application to review that decision the Tribunal, by its decision dated 6 July 2000, affirmed the delegate's decision. The applicants now ask for judicial review of the Tribunal's decision. In essence the grounds of the present application are that the Tribunal's reasons for making a central finding are said to contain errors which, taken individually or collectively, give rise to one or more reviewable errors under s 476(1) of the Migration Act 1958 (Cth) ("the Act"). 2 In order to understand the basis for the application, it will be necessary to explain the Tribunal's relevant findings and its process of reasoning.

THE TRIBUNAL'S REASONS 3 The Tribunal noted that only the first applicant thereafter (and hereafter referred to as "the applicant") had made specific claims under the Convention and that these claims were made in several forms: in the visa application made to the Department, in written submissions to the Tribunal and in oral evidence to the Tribunal. 4 The Tribunal noted (relevantly) that the following claims were made to the Department in April 1998: · The applicant was born in Kayts in northern Sri Lanka. · Between 1935 and 1988 the applicant resided in Jaffna. · Between 1955 and 1972, the applicant worked in Sri Lanka as a schoolteacher. He left Sri Lanka in 1972 on an employment contract to Zambia, where he taught until 1988. · On 3 June 1990, the applicant commenced to carry on business as a "multi trade and sales centre" at 161 Main Street, Jaffna under the business name "Das Complex". But on 18 June 1990, he was forced to shut the business down and run for safety when the LTTE made an attack upon the Sri Lankan Army. · In 1991, the LTTE expelled the Muslim community from the Jaffna area and took possession of all their properties and belongings. · A few months after the expulsion of the Muslims, LTTE officers asked the applicant to buy a bulk of second-hand items from the LTTE. The applicant refused on the ground that he did not buy goods, but only auctioned goods on a commission basis. The officers insisted that they be permitted to use the applicant's auction facilities. · In 1995 the Sri Lankan Army again captured the Jaffna Peninsula from the LTTE. The applicant who, like the majority of Tamils, was a supporter of the LTTE, had to move from Jaffna to Mirusuvil, about fifteen kilometres away. But upon assurances being given on behalf of the Army that Tamils who returned to Jaffna would not be harassed, the applicant returned in April 1996. · Upon his return the applicant discovered that his house had been bombed and looted. Over a long period he restored and repaired the house. He was forced to sell his business at a loss. · In 1997, a number of Muslims returned to Jaffna to reclaim their properties. In November 1997, two Muslims asked the applicant about the sale of second-hand items belonging to them, but then in the applicant's possession. The applicant explained the involvement of the LTTE in this connection in 1991. The Muslims expressed their suspicion that the applicant had bought and sold their goods on behalf of the LTTE, and abused the applicant. In December 1997, they demanded money from the applicant for their goods. · In March 1998 (after his arrival in Australia) the applicant was informed that Army personnel and pro-government militant groups had gone to his house in Jaffna looking for the applicant, and spoken to his cousin, who informed them that the applicant was visiting his sick sister in Singapore. The Army personnel said that they wished the applicant to appear before them to defend charges relating to complaints made by the Muslims. They threatened to take the applicant's cousin into custody if the applicant did not appear. · A few days later, the Muslims threatened to murder the applicant's cousin if they were not paid for their goods, informing him that they had told the Army that the applicant and his whole family were LTTE supporters. · Later in March 1998, the applicant was informed by other sources in Sri Lanka that the Army and the Police were looking for him. · If the applicant was returned to Sri Lanka, he feared that he "would be arrested, tortured and liquidated". · Because his nephew has been a full time member of the LTTE since 1990 and because the applicant's business premises were used by the LTTE, the applicant has been branded as an LTTE collaborator. 5 The Tribunal noted that the applicant made further claims in a written submission to the Tribunal dated 18 April 2000, where the applicant repeated much of the history of events described in his earlier statement, claiming that he had been targeted by the Sri Lankan Army and subject to systematic harassment since 1972. 6 The Tribunal noted that at the hearing before it, the applicant had made two main claims: (1) that because of his nephew's involvement with the LTTE and the applicant's contact with his nephew, the applicant was suspected of LTTE involvement; and (2) that because of the applicant's involvement with the LTTE through his business, the applicant was suspected of being a member of LTTE. 7 The Tribunal went on to refer to answers given by the applicant to questions the Tribunal had put to him. In the course of this, the Tribunal noted as follows: "According to the applicant's statement he returned to Jaffna in 1996. The Tribunal asked the applicant why did he return to Jaffna if he thought his businesses had been targeted because of his suspected LTTE involvement and he was concerned about being branded an LTTE member because of his past involvement with the LTTE. The applicant stated that he did not have any alternative place and the army was encouraging people to return. The Tribunal pointed out that the applicant was aware of the mistreatment of LTTE suspects and yet he returned. The applicant stated that at this stage the army did not have information about his LTTE connections. The applicant confirmed that he was approached by two Moslem men who were enquiring about the sale of second hand items which had belonged to them. He confirmed that this was in mid-November 1997. The Tribunal asked the applicant when did these Muslims make their complaint to the army? The applicant stated that it must have been after January 1998. The Tribunal pointed out to the applicant that according to his claims the Moslem men abused and threatened him in December 1997, why would they wait until after January to make their complaint. The applicant stated that he could not suggest a reason for the delay. [Emphasis added] The Tribunal noted the applicant's claim that he was informed by his cousin on 12 March 1998 [after his arrival in Australia] that Army personnel along with some pro-government militant groups had gone to his house to find out the whereabouts of the applicant, and have asked that the applicant appear before them in their office within a month's time to defend the charges relating to complaints made by the Muslim men. This claim suggests that the authorities had ever[y] intention of pursuing the complaint through legal channels. The applicant responded that at that time people were asked to appear and then some of them disappeared. The Tribunal noted that given that the applicant obtained … permission to depart Jaffna from the army, they would have already been aware that he had left - why would they go looking for him. The applicant responded that it may have been a different section of the army. The applicant confirmed that he had no difficulties obtaining his passport or departing Sri Lanka." 8 The Tribunal went on to say: "The Tribunal asked the applicant if he had any contact with the LTTE other than through his business. The applicant stated that the LTTE came to his workshop frequently, that he framed pictures for them for Heroes Day, and that he was quite public about his support for the LTTE. The Tribunal noted to the applicant that according to his statement to the Department of Immigration [at paragraph 3.k.] he was very reluctant to assist the LTTE in selling these goods. Yet he was now claiming that he was a supporter of the LTTE. If he was a supporter of the LTTE as he claimed why would he be reluctant to accept these goods. The applicant stated that he did not want to be identified publicly with the LTTE. The Tribunal pointed out to the applicant that according to his claims he had been public in his support for the LTTE - such as decorating his business for heroes day and other activities. The Tribunal referred the applicant to a letter from the Bishop of Jaffna, dated 30 June 1999. The Bishop makes no mention of any of the problems the applicant claimed to have undergone in relation to being suspected a member of the LTTE. What is telling about this letter is that he suggests that the reason he left Sri Lanka was because he was in ill-health and wish[ed] to join his children in his 'remaining years' - and not for Convention related reasons. The Tribunal asked the applicant to comment. The applicant responded that he did not request this letter to have his 'details'." 9 Turning to the "independent evidence" (in the main, reports by the US State Department and by the Australian Department of Foreign Affairs and Trade (DFAT)), the Tribunal referred to general background information to the effect that the ongoing war with the LTTE continued to be accompanied by serious human rights abuses by the security forces; that the typical profile of persons who would fall under scrutiny by the security forces continues to be young Tamils from the north or east, but particularly those from the Jaffna Peninsula; that the LTTE had discriminated against Muslims and in 1990 had expelled them from areas under LTTE control in the northern part of Sri Lanka; that the passport of a person who has been arrested on suspicion of LTTE involvement often is impounded; and that a person who is given a security clearance to proceed to Colombo is not likely to be of interest to the security forces and would have no trouble obtaining a passport and leaving the country. 10 The Tribunal then expressed its findings and reasons as follows: · The Tribunal found that the applicant did not have a well-founded fear of harm by the Sri Lankan authorities by reason of his imputed political opinion arising from his familial relationship with his nephew (this finding is not challenged in these proceedings). · With respect to the applicant's claims that he feared harm by the Sri Lankan authorities because of his business dealings with the LTTE, namely that items confiscated from Muslims when they were expelled from Jaffna were sold at his shop, and six years later when the Muslims returned, they discovered that the applicant had been involved and made a complaint to the Army, the Tribunal said: "There were a number of significant inconsistencies between the applicant's claims and evidence in regard to this claim, as well as significant implausibilities, that give rise to a lack of satisfaction that these claims are credible …." 11 The Tribunal went on to say (the paragraph numbering has been added for ease of reference): "[1] The applicant claimed that he was approached by Moslems in late 1997 and questioned about their possessions which had been confiscated in 1991. The Tribunal noted that in documents the applicant submitted to the Department of Immigration he stated that the LTTE sold the items confiscated from Muslims through four other outlets and yet there is no evidence to suggest that the proprietors of these other outlets were ever approached in the same manner. The applicant accounted for this by claiming that these outlets had closed down - although he has provided no evidence to support this allegation. The Tribunal does not accept the applicant's explanation as reasonable, and finds it implausible that he - of the five outlets selling these goods - would be the only proprietor approached about this matter. [2] The Tribunal also finds it implausible that six years after the event the Moslems would have found out that their goods were sold through the applicant's business. The applicant stated that they 'must have got the information'. He provided no explanation as to how the Moslems 'got the information'. The [T]ribunal does not accept as credible the applicant's explanation, which is unsatisfactorily vague. [3] The applicant claimed that he was approached by two Moslem men who were enquiring about the sale of second hand items, which had belonged to them. He confirmed that this was in mid-November 1997. He claimed that they made their complaint to the army after January 1998. The applicant claimed that they were extremely angry with him. [The] Tribunal therefore finds it implausible that these persons would wait two months to make their complaint to the army given their extreme anger. The applicant stated that he could not suggest a reason for the delay. [4] The Tribunal noted the applicant's claim that he was informed by his cousin on 12 March 1998 [after his arrival in Australia] that Army personnel along with some pro-government militant groups had gone to his house to find out the whereabouts of the applicant, and have asked that the applicant appear before them in their office within a month's time to defend the charges relating to complaints made by the Muslim men. Given that the applicant obtained his permission to depart Jaffna from the army, they would have already been aware that he had left - and it is implausible they would then go looking for him. The applicant's explanation was to the effect that 'it may have been a different section of the army'. The Tribunal does not find this explanation to account for this implausibility and gives it no weight. [5] Furthermore, and of significance, is the applicant's claim that the authorities sought him out in March 1998 - conveniently after he had departed Jaffna. The Tribunal finds it highly implausible that if the complaint was made in January as claimed by the applicant, the authorities delay[ed] two months before approaching the applicant. [6] The Tribunal notes that the applicant claimed [in his written submission to the Tribunal] that the authorities were pursuing him to Colombo, and yet in his application form he stated that he obtained his passport legally and without any problems. The fact that the applicant encountered no problems obtaining a passport and departing the country without difficulty contradicts the applicant's claim that he was being pursued by the authorities. The Tribunal cannot be satisfied that the applicant was being pursued by the Sri Lankan authorities as claimed. [7] The Tribunal notes that although the applicant has maintained throughout his applications that the Moslems approached the army to make their complaint, however, according to a letter dated 27 March 1998 from a Mr M. Louis [the applicant's cousin] the Moslems made their complaint to the police in Jaffna not the army. The applicant stated that he heard the news by the telephone that it was the army so he wrote in his application that it was the army. However the letter from Mr Louis was included in the applicant's submission to the Department of Immigration - so he was aware at the time he made his submission that the complaint was made to the police. This significant inconsistency gravely undermines the applicant's credibility that the Moslems approached the army. [8] The Tribunal notes that according to his statement to the Department of Immigration [at paragraph 3.k.] he was very reluctant to assist the LTTE in selling these goods. However the applicant has made contradictory claims that he was actually a supporter of the LTTE and had assisted them willingly. [9] The Tribunal notes that in a letter from the Bishop of Jaffna, dated 30 June 1999, the Bishop makes no mention of any of the problems the applicant claimed to have undergone in relation to being suspected a member of the LTTE. In fact, in this letter the Bishop suggests that the reason the applicant departed Sri Lanka was because he was in ill-health and wish to join his children in his 'remaining years' - and not for Convention related reasons. The applicant's explanation was that he did not request this letter to have his 'details'." (The terms of the Bishop's letter are set out at par 38 below.) 12 The Tribunal said that it: "… cannot be satisfied that the applicant has been truthful about this claim, and it cannot be satisfied that the applicant was ever approached by Moslems in Jaffna in 1997 or that these Moslems made a complaint to the authorities. In fact, the Tribunal cannot be satisfied that the applicant has ever been of any adverse interest to the Sri Lankan authorities or to any pro-government Tamil militant group." 13 With respect to several letters relied on by the applicant (set out in pars 14 - 17, below), the Tribunal said: "The letter from Mr Gnanapragasam only serves to confirm that the applicant had a business, and that he accommodated items for the LTTE - it makes no mention of any problems the applicant claims to have had with the authorities - despite being written at the time that he claims these problems were occurring. The letter from Mr M. Louis contradicts the applicant's claims and is dealt with above. The Tribunal finds the other letters submitted to the Tribunal from Mr Jayakumar and Mr George to be contrived and self-serving and in light of the Tribunal's grave credibility findings in relation to the applicant's credibility in regard to this claim, it cannot give weight to these letters." 14 The letter from Mr Jeyakumar to the applicant dated 25 January 1998, reads in part (as translated (AB 308)): "No sooner you left to Colombo, one day in the [evening] five persons came to the house and inquired about you. I think that they have gone to your shop first and searched you there. Because Tharmaratnam who works at Esons later told me that they have inquired about you from him also. He said two of the persons were like Muslims who have come to your shop before and argued with you about there things. He said that the others could be from the local Militant groups. They have come here and searched you as your shop was closed. I told about your departure to Colombo. Angrily they spoke something among themselves and left. Tharmaratnam also said that you will have problems with them. Therefore think it over well." 15 The letter from Mr Gnanapragasam dated 15 March 1998, was written at the applicant's request and addressed "To Whom it May Concern" as follows (AB 162): "I have known Mr. Aseervsatham Joseph Mariathasan since 1953 when I was a business partner at 'VASANS' photographic studio in Jaffna, Sri Lanka. He has been my customer and a business acquaintance ever since. Mr Mariathasan established a business concern 'DAS COMPLEX' Multi Trade and Sales Center in June 1990. But in 1991 I became aware of a 'Grand Sale' of a variety of second hand items ranging from electrical goods to textile materials being advertised and sold at give away prices under the banner of a new name 'NAVA NEETHAM' in the business premises of Mr Mariathasan. Based on information available from our friends at that time and later my conversation with Mr Mariathasan, I understood that he was by force ordered to accommodate the sale of these items, confiscated from Muslim people by the Liberation Tigers of Tamil Eelam (LTTE) when they expelled the Muslims from Jaffna, while they were in authority in the Tamil area. The facility DAS COMPLEX was functioning at 161 Main Street, Jaffna, while I was managing my 'GNANAMS' photographic studio and 'HOTEL GNANAMS' in Jaffna, Sri Lanka." 16 The letter from Mr George, dated 16 March 1998, states in part (AB 312): "Further I have informed you in detail by phone about the current situation here. Therefore do not think of coming here. Mary and children are frightened from the time 'those' people came in search of you." 17 The letter written to the applicant by Mr Louis dated 14 (not 27) March 1998 was (as translated) as follows: "My dear brother and sister in law We are quite in good health and I like to know your health too. After you left from Jaffna I have not received any information from you so far. My daughter from Colombo informed me that you left for Australia from Singapore. When do you intend to come to Sri Lanka. Coming to Jaffna is not a good idea when you were in Jaffna at Dhas Complex you sold most of the goods that belonged to the LTTE. Muslims who were living in Jaffna earlier have now come back to the town. They made a complaint at the Jaffna Police Station saying that the articles belong to them had been stolen by the LTTE and has been sold in your shop. As you are my related the Police made an inquiry from me about this matter. As the Muslims who have made an entry against you and the LTTE I think it is not advisable to come back to Jaffna because of the fact that you will get into more trouble. Please think over this matter and send me an early reply. Thank you. Your brother M. Louis"