Mok v Minister for Immigration & Local Government & Ethnic Affairs

Federal Court of Australia|2003-12-18|Before: Hayne J, Gray J

The nature of the proceeding 1 This application invokes the jurisdiction conferred on the Court by s 39B of the Judiciary Act 1903 (Cth) ('the Judiciary Act'), in relation to a decision of the Refugee Review Tribunal ('the Tribunal'). The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (now the Minister for Immigration and Multicultural and Indigenous Affairs) (in both cases 'the Minister') to refuse to grant to the applicant a protection visa. The application was made initially to the High Court of Australia. By order of Hayne J, on 30 July 2002, it was remitted to this Court, pursuant to s 44(1) of the Judiciary Act. 2 The applicant is a citizen of Sri Lanka. He arrived in Australia on 10 September 1998. On 22 October 1998, he lodged an application for a protection visa. On 24 March 1999, a delegate of the Minister refused to grant a protection visa. The applicant applied to the Tribunal for review on the merits of this decision. On 14 March 2002, the Tribunal conducted a hearing at which the applicant gave oral evidence. He was then assisted by a person who is a solicitor and a registered migration agent. On 31 March 2002, the Tribunal delivered a written decision and reasons for decision. It affirmed the decision not to grant a protection visa. The applicant seeks a declaration that the decision of the Tribunal was invalid and contrary to law, and orders that would have the effect of removing the decision into this Court, quashing it, prohibiting the Minister from giving effect to it, and directing the principal member of the Tribunal to take all necessary steps for the Tribunal, differently constituted, to consider and determine the applicant's application according to law. The applicant also seeks an order that the Minister pay the applicant's costs of the proceeding. 3 By s 36 of the Migration Act 1958 (Cth) ('the Migration Act'), there is a class of visas to be known as protection visas. A criterion for a protection visa is that the person applying for it be a non-citizen in Australia to whom the Minister is satisfied that Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Migration Act contains definitions of the terms 'Refugees Convention' and 'Refugees Protocol'. The former is defined as the Convention relating to the Status of Refugees done at Geneva on 28 July 1951. The latter is defined as the Protocol relating to the Status of Refugees done at New York on 31 January 1967. For present purposes, it is convenient to call these two instruments taken together, the 'Convention'. It is sufficient to note that, pursuant to the Convention, Australia has protection obligations to a person who: 'owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country'.

The applicant's claims 4 The applicant claimed to fear persecution, if he were to return to Sri Lanka, by reason of his race (he is a Tamil) and of the political opinion, attributed to him by the Sri Lankan authorities, of support for the Liberation Tigers of Tamil Eelam ('LTTE'), a militant Tamil group, engaged in a struggle for an independent Tamil state in Sri Lanka. In the course of the hearing, the applicant's adviser also submitted to the Tribunal that the applicant's fear of persecution was based on his membership of a particular social group, namely young Tamils. The Tribunal did not consider that the attempt to base the applicant's case on this ground raised any issue different from the grounds of race and political opinion. The Tribunal did not deal with the question of a particular social group in its reasons for decision, but no point was taken about this on behalf of the applicant in the present proceeding. 5 In the material that the applicant placed before the Minister's delegate, the material placed before the Tribunal, and his oral evidence to the Tribunal, the applicant referred to two occasions when he had been arrested, detained and interrogated while he was in Sri Lanka. His experiences in relation to these two incidents were the basis of his claim that he had been persecuted in the past, and the Tribunal's assessment of them was crucial to the question whether there was a real chance that the applicant would be persecuted if he were to return to Sri Lanka. 6 The applicant was born in the hill country in the centre of Sri Lanka. He completed his school education in that area. After leaving school at the end of 1990, he moved to a suburb of Colombo, where he worked in a restaurant run by his older brother. Because the restaurant was vegetarian, and was popular with Tamils, some suspicion arose that it was a place where members of the LTTE were given assistance. 7 In August 1991, police and security forces raided the restaurant. They took away the applicant, his brother, and two others. All but the brother were released after two days. The brother was held for some considerable period and tortured. As a result of his experience, the brother fled the country and sought asylum in Germany. He developed a psychiatric illness, said to be consequent upon his treatment while in detention, and returned to Sri Lanka at a later time for treatment. 8 The applicant attempted to revive the restaurant business, but could not succeed in doing so. He returned to the hill country to live and to study. While there, he befriended and assisted two Tamil boys from the north of Sri Lanka who were moving to the area around Kandy, in the centre. The applicant assisted these two boys to find accommodation and to enrol in educational institutions. He became friendly with these two and remained in contact with them. 9 From about September 1995, the applicant worked as a sales representative for a pharmaceutical company. His sales round included various towns in the hill country. While he was there, there was an LTTE attack on a temple in that area. This resulted in a search operation by government forces in which all Tamils were arrested and detained for questioning, including the applicant. The applicant was not detained beyond the preliminary screening, because he had been born in the Kandy area and had studied there and was employed by a Colombo firm. He could therefore prove that he was in the area for work purposes. He was released without the security forces ascertaining that he had been detained and interrogated under suspicion of assisting the LTTE in 1991. 10 After his release, the applicant moved away from Kandy. He learnt that others who had been arrested and interrogated were tortured, especially if they were Tamils from the northern districts. He became convinced that the two boys whom he had befriended and assisted would identify him under torture as a person who had helped them. He feared that the security forces would pursue him. If he were again arrested, he would be tortured and interrogated, particularly as it would then be known that he had previously been investigated for supporting the LTTE. As a result, he went into hiding and then left Sri Lanka for Singapore, where he embarked on a course of study. After a few months, he came to Australia with a visitor's visa. 11 The applicant said that, after his departure from Sri Lanka, he was told that, within a week after the arrest of his two friends, the security forces made enquiries of his family, and his former employer, as to his whereabouts.

12 The applicant also said that he had applied for an identity card in 1993 and had to wait until 1996 before one was issued to him. He attributed this delay to his membership of the Tamil ethnic group.

The Tribunal's reasons 13 In its written reasons for decision, the Tribunal set out in summary form the claims made by the applicant. Under the heading 'Relevant Independent Information About Sri Lanka', the Tribunal also set out a summary of information from various sources concerning the situation in Sri Lanka, with respect to Tamils, up to the time of the Tribunal's decision. Much of the information came from the Australian Department of Foreign Affairs and Trade ('DFAT'). Some of it came from the United States Department of State and some from the United Kingdom Immigration and Nationality Directorate. 14 The Tribunal then set out its findings and reasons. It accepted that the applicant had been questioned in 1991 and in 1998 by the Sri Lankan authorities about his identity, those he associated with, where he had been and so on. As the Tribunal said: 'independent information confirms that the Sri Lankan authorities undertake a great deal of such checking and I am satisfied that the applicant, as a young Tamil man, had the two experiences he described. Young Tamils are frequently caught up in the security authorities' attempts to locate LTTE operatives.' 15 The Tribunal then summarised information from DFAT about the questioning of Tamil people. If their birthplace or residence is in the north or east of Sri Lanka, Tamils will be asked to explain their presence where they are and will be subjected to detention and further investigation if their explanation is not accepted. Young Tamils without identity papers, who speak little Sinhalese, and people who have come south from the war zones can be particularly vulnerable to further investigation. The Tribunal then expressed the view that being questioned about one's identity, whereabouts at various times, and the reason for being in a place, is not itself persecutory conduct. In the Tribunal's view, it was part of the legitimate function of the Sri Lankan authorities to attempt to secure the population from terrorist attacks carried out by the LTTE. The Tribunal said: 'The applicant has been subjected to such questioning and checking in 1991 and in 1998 and was released after a short period when the authorities were satisfied that he was not associated with any LTTE activity. I do not consider that what he experienced was persecutory conduct because I do not consider that such action in respect of him involved serious harm. It is what can happen to a person once they are in custody for a longer period and subjected to further investigation which can be conduct properly regarded as persecutory: there is a high incidence of torture of detainees during interrogation and while 90 per cent of people detained are released after 48 hours, ten per cent are detained for longer periods.' 16 The Tribunal then discussed the applicant's claim that his two young Tamil friends would have given information about him when they were interrogated and his claim that this was confirmed by the fact that the authorities asked after him after his release from custody. It mentioned his claim that the two episodes of questioning in 1991 and 1998 would contribute to the authorities' suspicion of him. The Tribunal then said: 'The central question to decide in determining whether the applicant's fear of persecution is well-founded is whether there is a real chance that he would be subjected to further investigation and detention following such questioning as I accept could occur in the normal course of life in Sri Lanka or if he were to be questioned about the assistance he gave to the two Tamil boys in 1995 who he believes told the authorities of this when they were arrested in 1998. My consideration of the evidence before me has led me to conclude that the chance that the applicant would be subjected to further investigation and detention and so be at risk of possible mistreatment while in custody is remote. In reaching this conclusion, I have had regard to information which indicates that it is young Tamil people who were born or who lived in the north and east of the country who face particular risk of being suspected of association with terrorism: the applicant was born in the central Kandy area, far from the war zone, and he has lived and worked only in that area and Colombo, and he speaks Sinhalese. As well, I do not consider that the episodes of questioning in 1991 and, some seven years later, in 1998 would have any adverse consequences for the applicant today: he was released after he was questioned on both occasions and this is in my view clear evidence that he was not suspected of association with the LTTE.' 17 The Tribunal found 'very speculative' the applicant's evidence about the two Tamil boys implicating him in terrorist activity or linking him to the LTTE. It found the applicant's evidence about the authorities coming to his home and his workplace to look for him unconvincing. It pointed out that nothing appeared to have happened to his family other than merely being asked about the applicant's whereabouts and activities. It made a similar finding in relation to his employer. It expressed the view that, if there had been a serious intent on the part of the authorities to find the applicant, there would have been a more sustained and intensive effort to do so. It did not consider that he would be particularly sought out on his return to answer accusations he appeared to fear might have arisen from the questioning of his friends. It did not consider that there was anything more than a remote chance that the help the applicant gave his friends in the past would have an impact on the chance that any routine questioning he might experience would be anything more than he had experienced previously. 18 The Tribunal also did not consider that the delay in obtaining a national identity card was material to what the applicant feared might follow if he returned to Sri Lanka. The applicant was able to obtain such a card and there was no evidence to indicate that his difficulty in obtaining it had any consequences for him which led him to be persecuted. It found that, even if he had lost his card, there are procedures in place now to facilitate the issue of a card. 19 As a result, the Tribunal was not satisfied that there was a real chance that the applicant would face, upon return to Sri Lanka in the reasonably foreseeable future, treatment amounting to persecution because of his race, his real or imputed political opinion, or any other of the reasons in the Convention. It found that his fear was not well-founded. Accordingly, it considered that the applicant was not a person to whom Australia had protection obligations under the Convention. He did not therefore satisfy the criterion for a protection visa.

The applicant's case 20 In his amended application, filed on 6 December 2002, the applicant identified five grounds of error, on the basis of which he claimed to be entitled to the relief he sought. In his submissions to the Court, the applicant's counsel abandoned some of these grounds, on the basis that s 474 of the Migration Act would prevent the applicant from succeeding on them. In other respects, counsel for the applicant argued more than one of the grounds together. In substance, the applicant's case in the Court raised two distinct points. The first point was the suggestion that the Tribunal had failed to deal with the actual claim put by the applicant, and had failed to appreciate the significance of the facts raised by him as to his past treatment, so as to show that it had failed to exercise the jurisdiction given to it. It had failed to deal with an essential integer of the applicant's claim, and had failed to understand the true meaning of persecution, for the purposes of the Convention. The second point concerned the failure of the Tribunal to give to the applicant a proper opportunity to deal with the information summarised under the heading 'Relevant Independent Information about Sri Lanka', on which it had relied. This was said to be a denial of natural justice, or procedural fairness, and also to be a breach of s 424A of the Migration Act.

The Tribunal's approach to the applicant's claims and to the meaning of persecution 21 The applicant's case depended heavily on the argument that the Tribunal had ignored his evidence that, when he was detained and questioned in 1991, he had been assaulted. In evaluating the strength of this argument, it is necessary to say that the evidence of assault on that occasion did not loom large in the applicant's case. He did not raise it specifically in his application for a protection visa, or in his interview with the Minister's delegate. Nor did he refer to it in his oral evidence before the Tribunal. It was only in a statutory declaration, made on 7 March 2002 and filed with the Tribunal shortly before its hearing, that the allegation surfaced. In that declaration, in giving the account of the arrest, detention and interrogation of the four people connected with the restaurant in 1991, the applicant said: 'All of us were assaulted and ill treated. The assault on my brother required him to attend hospital and he never recovered from the shock of the situation.' 22 So far as appears from the material before the Court, there were never any details given by the applicant of the nature of the assault he alleged. Plainly, he intended to contrast his own situation with that of his brother, who was the victim of much more serious physical ill-treatment by the Sri Lankan authorities than the applicant ever suggested he was. In the absence of any particulars of any assault on the applicant, it is hard to see how the Tribunal could have made a specific finding about it. 23 The Tribunal made the finding that what the applicant had experienced in being arrested, detained and questioned in 1991 did not amount to persecutory conduct, because it did not involve serious harm to him. In approaching the matter in this way, the Tribunal was applying s 91R of the Migration Act, which requires that there have been serious harm to a person before a finding of persecution of that person can be made. There is no exhaustive definition of serious harm, but instances of what is to be regarded as serious harm are listed in s 91R(2). They include 'significant physical ill-treatment'. Before the Tribunal could have found that the applicant suffered something of this nature, it would have been necessary for the applicant to provide some detail of what had been done to him. This he never did. It cannot be contended that he did not have the opportunity to do so, if in fact he was capable of giving evidence about significant physical ill-treatment. 24 It was open to the Tribunal, on the evidence before it, to reach the conclusion it reached about the 1991 incident. It is not the case, as counsel for the applicant suggested, that the Tribunal must have misinterpreted the term 'persecution', if it implicitly took account of the claim of assault in 1991. It must be remembered that the Tribunal's task was to focus on the future. The Tribunal was required to determine whether, if the applicant were to return to Sri Lanka, there was a real chance that he would suffer persecution in the reasonably foreseeable future. See Mok v Minister for Immigration & Local Government & Ethnic Affairs (No 1) (1993) 47 FCR 1 at 66. What had happened to him in Sri Lanka was only a guide to what might happen to him in the future. The Tribunal dealt at some length in its reasons for decision with the question whether any consequences of the 1991 incident would attend the applicant if he were to return to Sri Lanka. It found that they would not, for a variety of reasons. This finding was plainly open to the Tribunal on the evidence before it. Even if it had accepted that, as a matter of fact, what had happened to the applicant in 1991 had amounted to persecution, it would still have been open to the Tribunal to make the finding as to the future that it made. 25 Counsel for the applicant also complained that the Tribunal misunderstood the concept of 'persecution' when it distinguished between what was likely to happen to a young Tamil in custody for a short period and what was likely to happen if the person were detained for longer. Again, it must be remembered that the Tribunal was bound by s 91R of the Migration Act to find that persecution could not be constituted by anything less than serious harm. The Tribunal was well aware of the fact that young Tamils were likely to be arrested and detained and questioned. It also found that, in most cases, they were released after a short time, when the authorities were satisfied that they did not represent a threat. It was entitled to find that this process did not amount to persecution, but that persecution was likely to occur in respect of those detained for a longer period, because of the prevalence of torture in such cases. 26 Finally, counsel for the applicant argued that the Tribunal erred in not making a finding as to whether the serious ill-treatment of the applicant's brother, with the resulting psychiatric condition, might be a basis for the applicant to have a well-founded fear of persecution. It cannot be said that the Tribunal was unaware of what had happened to the brother. It made references to the evidence the applicant gave about the brother's treatment and the condition alleged to have resulted from it. What the applicant failed to do, however, was to provide any evidential basis on which the Tribunal could have reached the conclusion that something similar was likely to happen to the applicant. Again, it must be remembered that the applicant's case involved events several years before the Tribunal was dealing with the case. Even if the applicant might have been entitled to fear that he would suffer persecution himself, as a result of what had happened to his brother in 1991, the Tribunal was not bound to hold that this fear of such persecution in 2002 was still well-founded. As I have said, it was the task of the Tribunal to focus on the future. 27 For these reasons, I am not able to find that the Tribunal made any error in the way in which it dealt with the applicant's case. If the Tribunal ignored the applicant's suggestion that he had been assaulted and ill-treated, it was because the applicant never gave it any details of that allegation. On the material before it, the Tribunal could not find that what had happened to the applicant in 1991 amounted to serious harm. If material existed that could have led to that conclusion, it was for the applicant to bring it to the Tribunal's attention. If it had existed, there is no doubt that his migration agent would have assisted him in doing so. The material relating to the common treatment of young Tamils in Sri Lanka, and the applicant's account of his brother's misfortune, were not such as to compel the Tribunal to reach the conclusion that the applicant's fear of persecution was well-founded.

Denial of natural justice and s 424A 28 It is common ground that, at the time when it performed its functions in relation to the applicant's case, the Tribunal was obliged to afford to the applicant natural justice, now commonly called procedural fairness. For present purposes, this means that the Tribunal was bound to notify the applicant of significant material that the Tribunal proposed to use against him, and to give him a fair opportunity to comment on it. Section 424A of the Migration Act also imposes on the Tribunal an obligation to notify the applicant of information it proposed to use against him and to give him an opportunity to comment on it. Section 424A contains a code as to the manner in which the information to which it relates is to be notified to an applicant. The general obligation to afford procedural fairness could be satisfied in a variety of ways, including telling the applicant about the information at a hearing and providing him with an opportunity to make oral, or perhaps later written, submissions about it. 29 Section 424A of the Migration Act provides, so far as is relevant, as follows: '(1) Subject to subsection (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and (c) invite the applicant to comment on it. ... (3) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application; or

(c) that is non-disclosable information.' 30 The applicant's submissions concerning this aspect of the case were based on the assumption that all of the material summarised in the Tribunal's reasons for decision under the heading 'Relevant Independent Information about Sri Lanka' was information that the Tribunal was obliged to deal with under s 424A, or of which it was required to give notice to the applicant to satisfy its obligation to provide him with procedural fairness. At the conclusion of the hearing of the proceeding, I made orders for the making of further submissions in writing about what had happened at the Tribunal's hearing. This was for the purpose of enabling those acting for the Minister to obtain a copy of the transcript of the hearing, and to examine it for the purpose of determining whether the Tribunal had given the applicant a fair opportunity at the hearing to deal with aspects of the relevant independent information about Sri Lanka on which it relied. The Minister subsequently supplied a copy of the transcript of the Tribunal hearing, together with written submissions about what had occurred. The applicant's written submissions in reply were very brief. At no point did counsel for the applicant seek to identify specific items of information upon which the Tribunal relied against the applicant, that might have fallen within s 424A or have given rise to a denial of procedural fairness. 31 An examination of the Tribunal's reasons for decision discloses that, to a very great extent, the material it summarised under the heading 'Relevant Independent Information about Sri Lanka' was material helpful to the applicant's case. In several instances, the Tribunal relied on such material as part of its reasoning in accepting the applicant's claim. It must be remembered that, to the extent to which the applicant gave evidence about what had happened to him, the Tribunal accepted the substance of what he said. One reason for its acceptance of what the applicant said was the Tribunal's reliance upon information obtained from other sources. 32 Only in two respects did the Tribunal make specific use of information from independent sources in a way that could be described as using it as part of the reason for affirming the decision under review, for the purposes of s 424A, or using it against the applicant's case, for the purposes of procedural fairness. The first of these instances, is revealed in the passage in its reasons for decision in which the Tribunal indicated that it had had regard to information about young Tamil people who were born or who lived in the north-east of the country, who faced particular risk of being suspected of association with terrorism. The Tribunal used this information to distinguish between young Tamils from the north and east of the country and the applicant, who had been associated only with the central area and with the Colombo area. This information might have been regarded as information that fell within s 424A(3)(a) of the Migration Act, because it was 'just about a class of persons of which the applicant' was a member. It was information about young Tamils. The applicant claimed to be a member of that class. He even described that class as a particular social group, for the purposes of the Convention. In any event, the information appears to have been common ground. In the course of the hearing, the Tribunal asked the applicant questions about his detention in 1998. In the course of answering those questions, the applicant indicated that, because he came from Kandy, he was 'allowed to go easy'. The Tribunal then asked about 'some of your Tamil friends who have come from the north' and referred to the fact that they were detained for a longer period. The applicant did not at any stage suggest that the distinction between people from Kandy and people from the north was a false one, or that it would be untrue to say that he would be treated in a more lenient fashion than young Tamils from the north, because he came from Kandy. Indeed, it was his evidence that he would be treated more easily. 33 The other item of evidence on which the Tribunal appeared to rely against the applicant's interest was the item that led it to find that there currently exists a procedure to facilitate the issue of new identity cards in place of lost identity cards. The Tribunal did not give the applicant any notice that it proposed to use against him material suggesting that there now exists a system under which, if the applicant were to lose his identity card, there are procedures in place to facilitate the issue of a card. On any view, this was a matter peripheral to the case as a whole. The applicant had said that he had had difficulty and delay in renewing his identity card between 1993 and 1996. The Tribunal found that this had no effect on his fears as to what might follow if he should return to Sri Lanka. It pointed out that the applicant was able eventually to obtain an identity card. It said that there was no evidence to indicate that his lack of such a card had any consequences for him with regard to persecution. Only then did the Tribunal add its reference to a procedure for facilitation of the issue of a card. A breach of s 424A, or a denial of natural justice, in this respect was of so little importance to the outcome of the case that it can be said to have had no bearing on it whatsoever. If it did have a bearing on the outcome of the case, its influence was so slight as to warrant the exercise of the Court's discretion to refuse to grant the relief sought by the applicant.

Conclusion 34 For these reasons, the application must be dismissed. There appears to be no reason why the usual order, that costs follow the event, should not be applied.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

Solicitor for the Applicant: Ravi James & Associates

Solicitor for the Respondent: Australian Government Solicitor

Judiciary Act 1903(Cth)ss 39B, 44(1)

Migration Act 1958(Cth)ss 5(1), 36, 91R, 424A

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