Mowjood v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT BACKGROUND 1 The applicant, a citizen of Sri Lanka, arrived in Australia on 8 July 1996. On 30 June 1997 he applied for a protection visa. The application was refused, the Refugee Review Tribunal affirmed the refusal, and the applicant seeks review of the Tribunal's decision under Part 8 of the Migration Act 1958. CLAIMS AND EVIDENCE Visa application 2 In his visa application the applicant said he is a Muslim who is a member of a family that has been strong supporters of the United National Party (UNP). His paternal grandfather was popular as a political figure in Trincomalee. A relative of his mother, Mr Marikkar, had been Member of Parliament for the Puttalam District and a UNP Minister. In 1972 the UNP considered nominating the applicant's father as the UNP candidate for the Puttalam district when Marikkar was ill. One of the applicant's paternal uncles, Mr Mohamed Ali, was a Member of Parliament between 1952 and 1972. Another paternal uncle, Mr Maharoof, became a Member of Parliament in 1977 and was a Minister in successive UNP governments. The applicant's immediate family moved from Puttalam to Trincomalee in 1979. The applicant engaged in political activities for the UNP in the December 1988 presidential election. In the lead up to the general elections in February 1989 he worked for Maharoof. He states that as a result of the speeches he made he "got into the bad books of the Tamil Militants and they attempted to kill me … they started confiscating my father's property". The family decided to leave Trincomalee because they were not safe there, and went back to Puttalam. The applicant's father did not think the applicant was safe in Puttalam and sent him to Colombo to stay with his uncle Maharoof. 3 At the time of the August 1994 general elections, the applicant worked for Festus Perera MP, a UNP candidate and a good friend of his father. He also worked in the Puttalam district to have Gamini Dissanayake elected at the November 1994 presidential election. On 16 March 1996 at Puttalam, where he was visiting his mother, Mr Dasanayake, a People's Alliance (PA) parliamentary member for the Puttalam district, called and asked the applicant to stand as a PA candidate in the Provincial Council elections scheduled for June 1996. He also offered him money. When the applicant refused, Dasanayake threatened to inform the police that the applicant had been supporting the Liberation Tigers of Tamil Eelan (LTTE) financially and in other ways when the applicant had been in Trincomalee. He also threatened to kill the applicant and destroy his family if the applicant complained to the police. He gave the applicant ten days to make his decision. Later someone identifying himself as Dasanayake's security officer telephoned the applicant and demanded that he meet Dasanayake within a week. The applicant was too afraid to complain to the police. He went to stay with another uncle in Wellampitiya. 4 The applicant said he did not claim protection on his arrival in Australia because he thought things would improve after the Provincial election. When this did not happen he made his application. In August 1997 he learned that Maharoof had been killed in Sri Lanka for political reasons. Written statement (August 2000) 5 In his written statement the applicant said he could not have asked the police for protection from Dasanayake, because Dasanayake had bodyguards and police with him when he approached the applicant. Tribunal hearing 6 The Tribunal recorded the evidence given at the Tribunal hearing. It was in part as follows: "The applicant said that he believed the Dasanayake had introduced himself and asked the applicant to stand for the PA in the local elections because there was a lot of support for the UNP in the Puttalam district. He was asked whether Dasanayake had known that he had assisted Perera in the 1994 parliamentary elections. He responded that Dasanayake had wanted revenge. The applicant was asked why the PA would have wanted a UNP supporter to stand for the PA in the local elections. He responded that he would have won in the local elections; and that if he had been killed, another person would have replaced him and the UNP could have been blamed for his (the applicant's) death. So, whether he accepted Dasanayake's proposition or not, he would have been killed. The applicant said that if he had reported the matter to the police, Dasanayake and the police who were with him would have known about it and harmed him. The applicant was asked why he would continue to be of adverse interest to the PA. He responded that the PA may still want votes in the Puttalam district. It was put to him that he would have lost his influence in the area given that he had been in Australia since July 1996. He responded that his influence derived from his family history, and that his family had given its own assets to people." 7 Asked why he had not lodged his visa application until about a year after his arrival, he said he thought the situation would have improved after two or three years. However he later discovered that the police had questioned his aunt, his friends and his mother about his activities and whereabouts. He agreed that the authorities may have known that he had left Sri Lanka if they had been searching for him. Documents 8 The applicant relied on documents and letters in support of his claim. Their content is summarised in the Tribunal's decision. Only one of them, a letter from the applicant's father dated 28 November 1997, need be mentioned. The father said it was not known whether the government or the LTTE had assassinated Maharoof. One week before the assassination the PA had negotiated with Maharoof to join the PA. Maharoof said he was going to speak in Parliament about the PA's offer, but the next week he was killed. Tribunal's decision 9 The Tribunal noted that the applicant claimed to fear persecution by members or supporters of the PA on the basis of his political support for the UNP and his membership of a particular social group, namely his family which had a high political profile in Sri Lanka. The Tribunal said the applicant "presented as an intelligent and articulate witness" at the hearing. He provided "detailed, consistent evidence" in his protection visa application about the political activities and positions of members of his family. The Tribunal continued: "In light of this evidence I find that the applicant's family consists of the applicant and his immediate family members; and Mohamed Ali and his immediate family members. I also find that the applicant's family has been and continues to be, defined by its active support of the UNP by the public in the Puttalam and Trincomalee areas; and is therefore perceived by the public in these areas as a cognisable group. While I have doubts that the applicant's family is perceived in Sri Lanka as a whole as a cognisable group within that society, I am prepared to accept that it is so perceived on the basis of the high political profiles of Mohamed Ali and Maharoof in the past. I therefore accept that the applicant's family constitutes a particular social group." 10 The Tribunal also accepted that · the applicant was an active UNP supporter in the elections in 1988 and 1989 · he was publicly seen to work for Maharoof in the general elections of February 1989 · he was publicly known to be Maharoof's nephew in the Trincomalee area · his political activities in the general election of February 1989 and his relationship to Maharoof resulted in him being at risk of harm for political reasons at the hands of the LTTE at that time · he engaged in political activities in support of Perera in the 1994 general elections and in support of Dissanayake in the 1994 presidential elections. 11 The Tribunal did not accept the applicant's claim that Dasanayake had threatened him in March 1996. It said: "I find that the evidence in support of that claim was inconsistent, implausible and unconvincing. I refer to his evidence, which I have accepted, in relation to his commitment to and public support of the UNP in the Puttalam area. I also refer to the involvement of members of his family in leadership positions in the UNP. In light of this evidence, I find it implausible that Dasanayake, a PA parliamentary member representing Puttalam …, would ask the applicant to betray his family and political allegiance to the UNP for money or for any other reason." The Tribunal also found it implausible that a person in Dasanayake's prominent political position would threaten to make an unsustainable complaint to the police that the applicant had supported the LTTE. It referred to country information it had earlier set out that showed that UNP supporters have not been accused of links with the LTTE by PA supporters, and have not been framed on criminal charges or security breaches by PA supporters. The Tribunal went on to give other reasons for not accepting the applicant's account of Dasanayake's threats. In relation to the Desanayake issue the Tribunal concluded: "As I do not accept that the applicant was threatened by Dasanayake, I do not accept that Dasanayake or PA supporters have sought to harm him for political reasons or because of his family membership; I do not accept that Dasanayake's security officer telephoned him on 19 March 1996 and demanded that he meet Dasanayake; and I do not accept that the PA intended to use him to gain political support in the Puttalam area or had any other political plans in relation to him." 12 The Tribunal did not accept the applicant's claim that the LTTE would harm him on his return. It gave its reasons for this conclusion: "While it is implicit in his evidence that he would have been harmed by the LTTE [in 1988/1989] had he not had Maharoof's security for protection, it is notable that the applicant did not expressly claim to fear the LTTE after he moved to Colombo. Furthermore, had he continued to fear the LTTE at least until 1994, it is reasonable to expect that he would not have been politically active in the elections of that year. Consequently, I do not accept that he was at risk of harm by the LTTE in 1996 as asserted by the applicant's father (by letter dated 29 August 1996), by Maharoof (by letter dated 5 October 1996) and Mohamed Ali (by letter dated 10 October 1996). It is also reasonable to expect that the applicant would have articulated a present fear of the LTTE in either his written or oral evidence had he genuinely feared being harmed by the LTTE upon returning to Sri Lanka. I am therefore not satisfied that he genuinely fears that the LTTE may harm him upon returning to Sri Lanka." 13 The Tribunal concluded its reasons as follows: "I have not accepted the applicant's claim that he was threatened by Dasanyake in March 1996 nor that he has been at risk of harm by PA supporters for reasons of his political support for the UNP or his membership of his family as defined. Nor have I accepted the applicant's evidence that the Sri Lankan authorities have demonstrated an interest in him by questioning his friends and relatives since he travelled to Australia. Accordingly, I do not accept that the applicant has a subjective fear that he will be persecuted upon returning to Sri Lanka because of his political opinion or membership of a particular social group. Furthermore, I find that the evidence that I have accepted does not establish that the applicant has been at risk of being persecuted for those reasons. It follows that I find that the applicant does not have a well‑founded fear of being persecuted for reasons of political opinion or membership of a particular social group." GROUNDS OF REVIEW 14 Numerous grounds were relied on in the amended application. Two were accorded the status of "main grounds". Some were expressly abandoned. Others were not expressly abandoned, but were not mentioned in oral argument. The case proceeded on the basis that the respondent would deal with the main grounds and those mentioned in the applicant's written submission, but not with the others. Particular social group 15 The applicant claimed that the Tribunal had not properly identified the particular social group, namely the applicant's extended family, in accordance with Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225. This was the first of the applicant's main points. I found this a curious submission because the Tribunal upheld the applicant's claim that he was a member of a particular social group, namely his family which had a high political profile as supporters of the UNP in the Puttalam and Trincomalee areas and, the Tribunal assumed, in Sri Lanka as a whole. Its description of the family is set out in par 9 above. 16 In Minister for Immigration and Multicultural Affairs v Zamora (1998) 85 FCR 458 at 464 the Full Court said that Applicant A was authority for the following propositions: "To determine that a particular social group exists, the putative group must be shown to have the following features. First, there must be some characteristic other than persecution or the fear of persecution that unites the collection of individuals; persecution or fear of it cannot be a defining feature of the group. Second, that characteristic must set the group apart, as a social group, from the rest of the community. Third, there must be recognition within the society that the collection of individuals is a group that is set apart from the rest of the community." 17 It was asserted that the Tribunal had not identified the characteristics of the social group. I do not accept this submission. The passage quoted in par 9 shows that the Tribunal treated the defining feature of the group as its active support of the UNP, and that this was what set the members of the family apart from the rest of the community: they were seen as a "cognisable group" because of their support for the UNP. The Tribunal did not fail properly to apply Applicant A. Its description of the group was sufficient. There was a suggestion from the applicant's counsel that the Tribunal should not have used descriptions such as "the applicant and his immediate family" members. But there was no need for the Tribunal to have attempted an exhaustive list. What matters is that the general family group was identified, and the applicant was specifically named as a member. Even if, contrary to my view, the particulars of the family were inadequate, that would have no significance to the outcome of the case because it did not flow through to, or affect, the findings the Tribunal made that were adverse to the applicant. See pars 11 to 13 above. None of those findings had anything to do with a detailed listing of all those persons who qualified as members of the family. Irrationality - Dasanayake 18 The applicant submitted that the Tribunal's decision in relation to the Dasanayake threat was not a simple mistake by the Tribunal, but was an irrational decision and thus reviewable. This was the second main point. Counsel relied on the following passage from the decision of the Full Court in Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 160 ALR 543 at 553: "We agree with the learned primary judge that a failure rationally to consider probative evidence is not the same kind of error as making a simple mistake of fact but, in our view, on the current state of authorities in Australia, that difference does not of itself allow for the elevation of such a failure to a mistake of law." That passage does not assist the applicant. It distinguishes between a simple mistake of fact and an irrational decision, but treats the latter, like the former, as not being a reviewable error. See also Minister for Immigration and Multicultural Affairs v Tedella [2001] FCA 832 and Gamaethige v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 424. 19 In any event there is in my view no irrationality in the Tribunal's decision in relation to Dasanayake incident. Counsel claimed that the irrationality resided in the inconsistency between two parts of the Tribunal's reasons. In the first, the Tribunal said the applicant presented as an intelligent and articulate witness, providing detailed, consistent evidence in his visa application about the political activities and positions of members of his family. In the second, it did not accept his story about Dasanayake's threat. The mere statement of the content of the two passages demonstrates that there is no inconsistency between them. The first accords with the Tribunal's acceptance of the applicant's evidence on the topics on which it believed him. The second accords with the topics on which it did not. Irrationality - father's letter 20 The applicant submitted that the Tribunal's failure to consider the applicant's father's letter of 28 November 1997 in connection with the Dasanayake threat demonstrated irrationality. It will be recalled that in the letter the father said that shortly before Maharoof's assassination the PA had negotiated with Maharoof to join the PA. As I understood the submission, this statement was said to be relevant by analogy to the applicant's story in relation to Dasanayake's invitation to him. The short answer is that the Tribunal did not fail to consider the letter. First, it fairly summarised its content (see par 8 above). Second, it dealt with the letter as follows: "I find that the assertion in the letter from the applicant's father (written after the delegate's decision had been made) to the effect that the police suspected the applicant of LTTE connections is implausible. I again refer to DFAT's report (CX29237) that UNP supporters have not been accused of links with the LTTE, or framed on criminal charges or security breaches, by PA supporters. In addition I accept the Inform report (above) that the LTTE was considered to be responsible for Maharoof's assassination shortly after the assassination occurred; and note that Amnesty's 1998 report was unequivocal in finding the LTTE responsible for the assassination. I therefore reject the suggestion in the letter of the applicant's father that Maharoof was assassinated by the PA government." Error of law 21 It was contended that the Tribunal had erred in law, and its decision was not authorised by the Act, because it had not dealt at all with the applicant's claim that he was at risk because of his political involvement with the UNP. The passages from its decision set out in pars 11 and 13 demonstrate that this contention is baseless. Failure to assess fear of identification as LTTE supporter 22 It was submitted that the Tribunal had ignored relevant material when it failed to assess the applicant's fear that he would be identified as a LTTE supporter in light of his uncle's assassination. The uncle died after the applicant's initial statement forming part of his visa application. The death is mentioned in his August 2000 statement, but he made no claim of the type said to have been ignored. In his evidence at the hearing the applicant blamed Maharoof's death on the PA, and said the government wanted to put the blame on the LTTE. In those circumstances one would not have expected the Tribunal to have considered a contention that was not only not advanced by the applicant, but was inconsistent with the case he was putting, namely that the PA had killed his uncle. Counsel did not advance this ground, and thus it was never explained why, if the uncle was killed by the PA, that would cause the applicant to be identified as a LTTE supporter. No ground of review is established in this connection. The Tribunal dealt fully with the more generalised claim that the applicant feared being harmed by the LTTE on return to Sri Lanka (ie not related to uncle's death). See par 12 above. CONCLUSION 23 The application must be dismissed. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.