Meadows v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 The applicants, who are citizens of Sri Lanka, arrived in Australia on 19 December 1995. On 21 February 1996 they lodged an application for protection visas with the Department of Immigration and Ethnic Affairs, as it then was, under the Migration Act 1958 (Cth) ("the Act"). On 18 October 1996 a delegate of the Minister for Immigration and Multicultural Affairs refused to grant protection visas to the applicants. On 18 November 1996 the applicants sought review of that decision by the Refugee Review Tribunal ("the RRT"). 2 The decision of the RRT, which affirmed the decision of the delegate, was set aside by a Full Court of the Federal Court (see Meadows v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 370) and the matter was remitted to a differently constituted Tribunal. The applicants have applied to review the decision of the differently constituted RRT which affirmed the delegate's decision not to grant protection visas to the applicants. 3 The applicants' claims for refugee status were based essentially upon their claim of feared persecution by reason of an actual or imputed association with the LTTE in Sri Lanka. The RRT appeared to approach the claim on the basis of an assumption that the fear alleged to have been held by the applicants was in fact held, with the question for the RRT being whether the fear was well-founded in accordance with the requirements of Article 1A of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees ("the Convention"). 4 The applicants, in their evidence and supporting material, relied upon a number of events which occurred prior to and since their arrival in Australia to support their claim. Counsel for the applicants accepted that those events and the RRT's findings in relation to them are accurately summarised in the written contentions of the respondent. I set out the findings as summarised in so far as they are relevant to the determination of the present application, as they explain the substance of the decision of the RRT, the reasons why the applicants were unsuccessful before the RRT and the findings of the RRT that led to its determination to affirm the decision of the delegate refusing to grant protection visas to the applicants. 5 The RRT accepted the following claims of the first applicant: "1. That she came from Kilinochchi. 2. The LTTE may have used her house there. 3. She had been unable to live there because of the conflict. 4. The applicants would have been questioned by the authorities during travel and the applicants would have had contact with the LTTE on visits there." 6 However, the RRT found that none of those matters in relation to Kilinochchi amounted to persecution, for several reasons: "1. From 1987 to 1995 the applicants lived in Colombo. 2. Checks by the army and LTTE during their visits did not amount to persecution. 3. The applicants were never detained. 4. The applicants travelled freely and could always have remained in Colombo. 5. That they continued to visit indicated that they did not suffer persecution consequential upon their visits." 7 The RRT found that none of the matters that related to Kilinochchi were capable of being added cumulatively to the problems the applicants claimed they faced in Colombo. The RRT found that the applicants were visited by police in 1994, the second applicant had a gun pointed at him when he could not find the key to open the front gate of their residence and he suffered adverse psychiatric symptoms as a result. However, the RRT found that this event did not indicate a real chance of persecution for a Convention reason because: "1. No particular reason for the visit was evident. 2. There were other visits in the area at the time. 3. There were no visits of this nature before or after and the applicants were not taken to a police station. 4. No follow-up was apparent." 8 The CID visited on other occasions, when the applicants had visitors from the north or prospective visitors, but no mistreatment was claimed. The son of the first applicant's sister was detained in Vavuniya while attempting to travel to stay with the applicants. The RRT found that this did not indicate that the applicants were imputed with a political opinion in support of the LTTE. The applicants were questioned by CID but not taken to a police station and no further police action occurred. The RRT found that the applicants' fears in relation to their neighbours were not well-founded. The first applicant's activities in preaching as a Jehovah's Witness brought her animosity but she did not suffer persecution and was able to practise her religion. 9 As a consequence of those findings, the RRT concluded that at the time of their arrival in Australia, the applicants did not have a well-founded fear of persecution for a Convention reason, whether for reasons of ethnicity, imputed political opinion, religion or any other Convention reason. 10 The RRT then turned to consider whether events may have occurred since the applicants' arrival in Australia which, when put alongside the events just outlined, may lead to a different conclusion. In respect of those events, the RRT found that the first applicant's brother was killed but found that any prospect that the applicants would be imputed with pro-LTTE political opinion as a result of this was remote as: "1. There was no evidence as to the reason or circumstances of his killing except that he was shot in a fight; 2. The applicants lived in Colombo and departed for Australia prior to the death." 11 The RRT found that the first applicant's sister-in-law was imprisoned after attempting to take illegal goods, being piston rings, to the north and received a suspended sentence and a fine after pleading guilty at her hearing on 15 September 1997. The RRT concluded that what happened to the first applicant's sister-in-law was a legitimate exercise of the authority of the state. All the sister-in-law could have told the police about the applicants was that she stayed with them when in Colombo and the RRT did not accept that the authorities would impute a political opinion to the applicants as a result of those matters. 12 The applicants' claims of feared persecution for a Convention reason were corroborated by two letters. One was from their tenant in Sri Lanka and the other was from the first applicant's sister. If accepted by the RRT, the letters would provide compelling evidence that the fear of persecution claimed by the applicants was well-founded. The RRT found that much of the tenant's letter had been fabricated at the request of the applicants to further their claim for refugee status. It concluded that the letter was contrived and was to be given no weight. The relevant parts of that letter are as follows: "Recently the Government security forces and the anti LTTE organisations had been coming here quite often and had been harassing us inquiring about you. On the 18th of November at 10 pm in the night the Government security forces surrounded the house and pointed the gun at me, asked me as to where John and Swarna are hiding. They said that you were LTTE spies and also inquired about Pushparanee Paramalingam. They further wanted to know as to how often Pushparanee comes here from Kilinochchi, how many young boys come with her and what they do when they come here. They searched the whole house and took away some files and letters. I told them that I am only tenant in this house and that I do not know anything else. I showed them the Lease document, and after that they left the house. They warned me not to give accommodation to anyone in the house without their permission. Later I heard that your sister-in-law Pushparanee was taken into custody at Anuradapura on suspicion that she is involved with the LTTE. They kept her in a camp and subsequently she has been put in prison. On the 19th early morning at 2 o'clock some unidentified young men with guns came in a van and tortured me. They wanted all information about you and Pushparanee and wanted to know whether LTTE boys still come to the house. They ransacked the whole house smashed some items and severely reprimanded us. I cannot continue to live in your house under such harassment and persecution. Please make arrangements for someone else to live here. Furthermore please do not come to Sri Lanka under any circumstances. The Government security forces and organisations are waiting to take revenge on you." 13 In its decision the RRT stated that it questioned the first applicant at some length about the tenant, her sister, her sister-in-law and her brother. It said that it had made it quite clear that the Tribunal had to consider the veracity of the claims made in the letter about events after the applicants' arrival in Australia, including the contents of the letter. In respect of those matters, the RRT made the following findings: "(1) Given what is known about the sister-in-law, the RRT did not accept that the authorities would have done any more than make inquiries of the applicants about whether they knew anything about her activities. (2) The applicants had been in Australia for almost 12 months at the time of the tenant's letter. (3) The RRT found that the sister-in-law would not have provided the authorities with information leading to the extreme response suggested in the letter. (4) The authorities may have made routine inquiries at the house on one occasion after the applicants' departure. (5) The authorities would not have informed the tenant that the applicants were suspected of being LTTE spies. There was no reason to suspect this and nothing for the sister to implicate them in. (6) If asked, the sister-in-law would have been more likely to say the applicants were in Australia. (7) The RRT did not accept that in the early hours of the next morning some unidentified men came to the house also wanting to know about LTTE boys visiting the house. It did not make sense for the police to find the applicants absent and for another connected visit to be made. This was not plausible. (8) The claim that the sister-in-law gave the authorities information that sent them in search of the applicants almost 12 months after their departure was far-fetched." 14 The RRT rejected the first applicant's claims that the police came to the house two or three times after the applicants' departure. It said that the police would have learned on the first visit that the applicants were overseas. The RRT found that the letter from the first applicant's sister was also contrived and gave it no weight. Relevantly, that letter stated: "You are lucky that you have gone to Australia. Hereafter do not think of coming back to Sri Lanka. Heavy shelling and the atrocities by the 'Boys' are quite common here. After the death of our brother and the arrest of our sister-in-law, mother is highly worried and is confined to the bed. Last month I went to Vavunia to participate in the 31st day religious rites and was held up in the refugee camp for about a month and then went to meet sister-in-law in prison and spoke to her. She is in an awful state. It appears that she had been subjected to a very cruel torture. She was not in a position to relate anything about it. She wanted to tell you not to return to Sri Lanka under any circumstances and to take care of yourselves. The Army has extracted all information about you. Furthermore it appears that by getting information from sister‑in‑law they have implicated you with the LTTE bomb explosions in Colombo. Whenever possible people are fleeing the country. Brother's death is also a mystery. Some in Vavunia say that he was shot by the army while others say that he was shot by the other groups. God only knows what the truth is. There is danger to your life from both sides therefore think seriously before you do anything." 15 In respect of the matters the subject of that letter, the RRT found as follows: "(1) Other relatives such as the sister-in-law's son and the first applicant's sister, were able to visit the sister-in-law in prison. (2) The letter did not claim other relatives had been imputed with pro-LTTE opinions. (3) The claim in the letter that the army had extracted all information about the applicants was contrived to implicate the applicants and further their attempts to remain in Australia. (4) No information beyond the sister-in-law's address for visits to Colombo could be given. (5) The RRT considered it far-fetched that the sister-in-law would implicate them almost 12 months after their departure. (6) The sister's suggestions that the applicants have been implicated in the bomb explosions was contrived. Two reasons were given: (a) Given the applicants' history, the RRT did not accept that the authorities would implicate them. (b) The sister's letter does not say how she came by this information. 16 As a consequence of those findings, the RRT did not accept that the applicants were sought after their departure, save for routine inquiry. The RRT considered that by late 1999 it was far-fetched to suggest that the applicants would still be of interest to the authorities, if for no other reason than the passage of time and the fact that the punishment of the sister-in-law was complete. 17 The RRT then turned to consider certain comments made by Einfeld J in the Full Court in relation to this matter. The RRT: "(1) restated its findings that the claims in the letters that the applicants were suspected of being LTTE spies and implicated in bomb explosions were far‑fetched and a concoction; (2) noted the new information in its possession about the sister‑in‑law's illegal activity in the north and found it was not possible from this to conclude that the authorities would be interested in the applicants; (3) noted that the cause of the death of the brother was unknown; (4) noted the detention of the nephew and found it had minimal impact on the applicants and did not indicate a real chance of their persecution." 18 The RRT also found that the applicants had lived in Colombo for some time, had been able to move around without difficulty and that the second applicant had consistent employment. It said that the chance of the authorities pointing a gun at the second applicant again would be remote and indicated that house to house searches which may involve the applicants would not amount to persecution. The RRT also concluded that it would be open to the applicants to complain of adverse treatment during such house to house searches if such treatment occurred. In the result, the RRT did not accept that events had occurred since the applicants' departure which indicated the imputation of a pro‑LTTE political opinion or a well-founded fear of persecution for a Convention reason. In the result, the applicants' claims before the RRT were not accepted. 19 The contentions of counsel for the applicants raised a number of points but ultimately only five points were pressed before me. The first, third and fifth points were based on a submission that the RRT had compartmentalised the applicants' claims by dealing with those claims in two ways which were said to be incorrect as a matter of law. First, it was said that the RRT compartmentalised the claims by dealing separately with events occurring before and after the applicants' arrival in Australia. The second compartmentalisation was that the RRT had dealt separately with each of the individual claims relied upon and had failed to deal with the effect of the claims, and the positive findings made in the applicants' favour, cumulatively. Thus, so it was argued, the RRT failed to weigh up, assess and make findings on whether there was a real chance of persecution for a Convention reason should the applicants return to Sri Lanka, on the basis of the findings that the RRT had made in the applicants' favour. 20 Put another way, it was said that the RRT failed to determine whether the cumulative effect of its findings as to what had occurred might result in a real chance of persecution for a Convention reason should the applicants return to Sri Lanka. I will accept for present purposes that if the submission of counsel for the applicants is made out, the RRT will have committed a reviewable error under s 476 of the Act. However, I am satisfied that the submission has not been made out. I have summarised the RRT's reasons in some detail because, inter alia, they demonstrate that the RRT did, indeed, appreciate that it was required to weigh up, assess and make findings on the applicants' claims cumulatively. As a matter of logic and commonsense, it was necessary for the RRT to make findings as to each of the individual claims relied upon by the applicants in order, ultimately, to assess the cumulative effect of its findings. 21 After dismissing the pre‑arrival events as justifying a well‑founded fear of persecution, the RRT stated that its task was to reach a conclusion in respect of past events, but accepting: "that events may have occurred since the applicants' arrival in Australia when put alongside the above may lead to a different conclusion." 22 The RRT added that: "That possibility is dealt with below." 23 When the RRT referred to the subsequent events which it was putting alongside the past events, it was plainly referring to the events that it had found had occurred as related by the applicants. After dealing with the events that occurred after the applicants' arrival in Australia in order, ultimately, to assess the cumulative effect of its findings, the Tribunal concluded as follows: "As stated above the Tribunal does not accept that events that have occurred since the applicants' arrival in Australia, and the evidence that has been produced about these events, indicate that they have been imputed with a political opinion in support of the LTTE. As a result the Tribunal does not accept that the applicants have a well‑founded fear of persecution because of imputed political opinion, their Tamil ethnicity or any other Convention reason. Given its findings in relation to the events that the applicants have claimed occurred since their arrival, the Tribunal also does not accept that these claims have a cumulative effect with the events that occurred prior to their departure such that it can be said that the applicants' fear of persecution on a cumulative basis is well-founded. The Tribunal is satisfied that in relation to each individual claim there is no real chance of persecution and given this, the Tribunal is also satisfied that taking the applicants' case as a whole there is no real chance that they will face persecution for a Convention reason. The Tribunal finds that the applicants do not have a well‑founded fear of persecution for a Convention reason should they now return to Sri Lanka." 24 In my view, the RRT's reasons, read as a whole, indicate that when it engaged in the assessment process to which it referred, it was doing so on the basis of the findings as to events that it had made in the applicants' favour and was both examining and considering the consequences of those findings, separately and cumulatively. The fact that it did so by reference to both pre and post departure events and then also separately in respect of specific events was no more than a logical process employed by the RRT in order to engage in the task which the Act mandated. 25 Further, the RRT explained, in some detail, why its findings in favour of the applicants, or put another way, its findings in respect of matters it accepted and did not reject, did not result in the applicants' fear of persecution being well founded. In doing so, the RRT was applying the test in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and the other aspects of the law as set out at pages 2 to 4 of its reasons for decision. The law applied by the RRT has not been the subject of any criticism by counsel for the applicants. Further, nothing appears in the RRT's reasons that suggest it misunderstood its task or failed to properly apply the law to the facts. Its ultimate findings, particularly those in respect of the letters, were explained by it in a manner that did not disclose any reviewable error. Whilst counsel for the applicants sought to query those findings, ultimately he accepted that several of his submissions were in effect seeking review on the merits. 26 I would add that if the matter were able to be examined afresh by this Court as if it were an appeal on questions of fact, there might be some justification for some of counsel's criticisms of some findings of the RRT. However, the weight the RRT ascribes to factual matters in its decision is not reviewable, as such, by this Court. The decision is only reviewable in respect of the errors specified under s 476 of the Act. I am satisfied that the matters sought to be raised by counsel in respect of what I have referred to as his compartmentalisation point, being his first, third and fifth points, have not been made out. 27 The second major contention put forward by counsel for the applicants challenged the RRT's findings in respect of the tenant's and the sister-in-law's letters, which were plainly critical to the RRT's determination against the applicants. The RRT had to assess the credibility of the applicants' case in reliance upon the letters as best it could. While, as I indicated above, there may be some debate about the way the RRT expressed its reasons and the manner in which it went about its factual findings that the letters were contrived, those findings were tasks committed to it as the tribunal of fact. I am not satisfied that the contentions put forward by counsel in relation to the letters justify or warrant any finding that an error of law or any other reviewable error was made by the RRT in the manner in which it approached and made findings in respect of the matters stated in the letters. In my view, counsel's contentions relating to the letters amounted to a challenge to the factual basis for the findings, and as a matter of substance, if not in form, sought to review the merits of those matters. 28 The other major submission of counsel for the applicants was that the RRT erred in law by imposing a burden of proof on the applicants. If that contention is made out, it was not disputed by counsel for the respondent that it would constitute reviewable error on the part of the RRT. However, there is no basis for the contention. I have carefully considered the reasons of the RRT, including passages to which I was taken by counsel for the applicants, and am not satisfied that there is any basis for the contention that the RRT imposed any burden of proof on the applicants. 29 The task of the RRT was set out in Minister for Immigration and Multicultural Affairs v Singh (2000) FCA 845 at [45] where the Full Court, by majority, accepted the following statement in Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 at [19]: "The Tribunal is under a duty to review the decision of the delegate on the merits and in doing so must have regard to all of the material and evidence before it and make findings on all of the material questions of fact raised by that material and evidence." 30 It is plain that it does not form any part of the RRT's function to impose a burden of proof on the applicants. In my view, the RRT was cognisant of those matters and discharged its duty in respect of the decision in the manner set out in Addo. 31 It follows from the foregoing conclusions that the application of the applicants to this Court must be dismissed with costs. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.