NAAT of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an appeal from the orders of a Federal Magistrate who, on 15 July 2002, dismissed the application of the appellants made under s 39B of the Judiciary Act 1903 (Cth) in which the appellants sought relief in respect of a decision of the Refugee Review Tribunal (the Tribunal) to affirm a decision of a delegate of the respondent Minister not to grant protection visas to the appellants. The decision of the Tribunal was made on 26 November 2001. 2 The Chief Justice has made a determination under subs 25(1A) of the Federal Court of Australia Act 1976 (Cth) that it is appropriate for the appellate jurisdiction of the Court in this appeal to be exercised by a single Judge. 3 Mr Godwin, who appeared for the appellants, expressly disavowed any breach of the "Hickman conditions" as discussed by the Full Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228. He submitted that I should examine the matter and if I were to be of the view that there was jurisdictional error, I should await the judgment of the High Court concerning s 474 of the Migration Act 1958 (Cth) which is currently reserved. I have examined the matter and have come to the view that there was no jurisdictional error in the decision of the Tribunal. 4 The appellants are citizens of Sri Lanka. They claimed before the Tribunal that they feared persecution in Sri Lanka on the grounds of race and/or political opinion, if returned to Sri Lanka. The male appellant is Sinhalese, the female appellant, his wife, is partly Tamil. Her father was Sinhalese and her mother Tamil. 5 The appellants claimed to have been suspected of sympathising with, or supporting, the Tamil Tigers (the LTTE) because the female appellant was half Tamil and because her Tamil relatives came to stay with them in Colombo. The Tribunal made the following findings: …Having had the chance of observing the Applicant and his wife giving their evidence before me, I accept that for the most part their account of their experiences in Sri Lanka is true. In particular I accept their evidence regarding the harassment and hostility they suffered from their neighbours and people at their workplaces because the Applicant's wife is half-Tamil and because of her Tamil relatives used to visit their home in Colombo. I accept that within about a year after their marriage stones were thrown at their house after midnight on two occasions and on one of those occasions and another occasion posters were pasted on the walls of their house saying 'LTTE' and using bad language. I also accept that when the Applicant went to the police to complain he was told that the police could not give him individual attention and on the second occasion a police officer said to him, using unpleasant language, that he should have thought about these things before he got connected with a Tamil family. I also accept the Applicant's evidence that he was questioned by the police, verbally abused and assaulted after a laptop computer was stolen from his place of work in August 1996. I accept that two or three days after this incident their home was searched by five people in civilian clothes whom they suspected to be police although nothing was taken. I accept that the Applicant was again questioned by the police, verbally abused and assaulted after the drinking water tank at his place of work was poisoned in around April 1997. I accept that on the latter occasion the Applicant was burned on his thigh with cigarette butts. I accept that the Applicant was told by the police that they had reviewed many petitions complaining that he was helping the LTTE and that the police asked him what he had done with Tamils, using bad language. I likewise accept that on two occasions, in April or May 1997, the Applicant's wife provided information to her Tamil relatives regarding consignments of goods for the Sri Lankan Army (on one occasion combat helmets and boots and, on the other occasion, night vision equipment) being handled by the firm for which she worked. 6 Nevertheless, the Tribunal had difficulty accepting some evidence given by the appellants. In particular, the Tribunal doubted the evidence that a Mr Mathiyaparam, a senior executive in Air Lanka, where the male appellant worked, paid the appellants a substantial amount of money for the information provided by the female appellant. However, notwithstanding these doubts, the Tribunal, in the light of the overall favourable impression that it formed of the credibility of the appellants, assessed their position on the basis that it was possible, although not certain, that the events about which the Tribunal had doubts occurred. Thus, the Tribunal said: I accept on that basis that Mr Mathiyaparam visited the Applicant and his wife at their home in around August 1997, that he gave them a substantial amount of money for the information which the Applicant's wife had already given and that he offered the Applicant a large amount of money for the use of his Airport Access Permit. I accept that the Applicant did not give Mr Mathiyaparam his Airport Access Permit and that Mr Mathiyaparam did not ask him for any more information. 7 The Tribunal continued: The difficulty that I have is that, as I put to the Applicant and his wife in the course of the hearing before me, there is nothing in the evidence before me to suggest that the Sri Lankan authorities are aware of the assistance which the Applicant's wife provided to her Tamil relatives nor of the contact the Applicant and his wife had with Mr Mathiyaparam. I do not neglect in this context the evidence of the Applicant and his wife, corroborated by the Applicant's wife's mother in her letter dated 18 September 2001, that after the Applicant and his wife left Sri Lanka their home was searched by the police who turned the whole place upside down. I accept that this occurred but there is no evidence that this search by the police had any connection with the assistance which the Applicant's wife had provided to her Tamil relatives or the contact the Applicant and his wife had with Mr Mathiyaparam. Moreover there is nothing in the evidence before me to suggest that the police could have found anything incriminating when they searched the former home of the Applicant and his wife. The Applicant's evidence is that he never assisted the LTTE in any way and his wife's evidence is that the only assistance she gave took the form of the information she provided to her relatives from Kalmunai when they telephoned her at her place of work on two occasions, in April and May 1997. The Applicant and his wife suggested that they would be in danger if Mr Mathiyaparam or the Applicant's wife's relatives were arrested. However, there is nothing in the evidence before me to suggest that either Mr Mathiyaparam or any of the Applicant's wife's relatives have been arrested in the four years since the Applicant and his wife left Sri Lanka nor that there is a real chance that any of them will be arrested in the reasonably foreseeable future. The Applicant invited me to speculate as to what would happen if Mr Mathiyaparam were to be arrested and if he were to fail to tell the Sri Lankan authorities that he had paid the Applicant and his wife a substantial amount of money for the help that the Applicant's wife had given. However I consider that this is to enter into the realm of surmise and conjecture: compare Applicant MK v Minister for Immigration and Multicultural Affairs [2002] FCA 881. As the High Court said in Guo [Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559] a fear of persecution is not well-founded if it is merely assumed or if it is mere speculation. I consider that the possibility that the Sri Lankan authorities will become aware of the assistance which the Applicant's wife provided to her Tamil relatives and of the contact which the Applicant and his wife had with Mr Mathiyaparam is too remote to give rise to a well-founded fear of persecution. As I put to the Applicant and his wife, there is nothing in the evidence before me to suggest that the Sri Lankan authorities have ever believed that either the Applicant or his wife had been assisting the LTTE. On each occasion on which the Applicant was taken in for questioning he was allowed to go home at the end of the day and simply required to return the following day. As I put to the Applicant, this does not suggest that the authorities seriously suspected him on either occasion of helping the LTTE. The Applicant's representative submitted that because their house had been searched by the police after they had left Sri Lanka the Applicant and his wife feared that the police would believe that they were sympathetic to, or that they had assisted, the LTTE. However I consider that this search must be viewed in the context of the Applicant's immediate past employment with Air Lanka, the fact that their former home was in the housing scheme near the airport and the fact that the police at the Katunayake Police Station had told the Applicant when they questioned him in around April 1997 that they had received many petitions complaining that the Applicant was helping the LTTE. 8 The Tribunal was of the view that, to the extent that they had had problems living in a particular neighbourhood, they could have avoided these by relocating to another part of Colombo. 9 The Tribunal said: Since, for the reasons given above, I do not accept that the Applicant has ever been seriously suspected by the authorities of helping the LTTE, and since I do not accept that there is a real chance that he will be accused by his neighbours, or people in his workplace, or the community at large, of helping the LTTE, it follows that I do not accept that there is a real chance that the Applicant will be taken for questioning by the Sri Lankan authorities on suspicion of helping the LTTE, or that his home will be searched, if he returns to Sri Lanka now or in the reasonably foreseeable future. Although the Applicant's wife is half-Tamil, she does not suggest that she has ever been suspected by the Sri Lankan authorities of helping the LTTE in the past and, as I have observed above, there is nothing in the evidence before me to suggest that the Sri Lankan authorities are aware of the assistance which the Applicant's wife provided to her Tamil relatives. I do not accept that there is a real chance that she will be arrested or questioned or otherwise persecuted by the Sri Lankan authorities by reason of her being part-Tamil or by reason of any political opinion imputed to her on account of her ethnicity if she returns to Sir Lanka now or in the reasonably foreseeable future. 10 The Federal Magistrate noted that there was no argument that the Tribunal had failed to exhibit good faith in the conduct of the review: R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598; NAAV v Minister for Immigration and Multicultural and Indigenous Affairs, supra. As I have said, there was no submission before me that there had been an absence of good faith on the part of the Tribunal, or that any other "Hickman condition" had been breached. 11 The appellants first attacked the conclusion of the Tribunal as to the ability of the appellants to relocate within Sri Lanka and to avoid difficulties of the kind hitherto experienced. Paragraphs 3 and 4 of the Amended Notice of Appeal dealt with the question and were as follows: 3. His Honour should have found that the RRT constructively failed to exercise its jurisdiction as its finding that the applicant's [sic] could relocate to Colombo was not reasonably reached. 4. His Honour should have found that the RRT failed to take into account relevant considerations. Particulars His Honour should have found that the RRT failed to take into account, in considering whether it was reasonable for the applicants to relocate, the fact that there was no evidence that the attitude of the Sri Lankan authorities in Colombo was different to the attitude of the Sri Lankan authorities in the Colombo International Airport Precinct. 12 These two grounds are closely related. The first was elaborated to the effect that looking at all the evidence, the preponderance was such that it would be irrational to conclude that the ability of the appellants to relocate was a reason why the appellants were not entitled to protection visas. There was conflicting evidence about relocation. The country information included a document entitled: Documentation, Information and Research Branch, Immigration and Refugee Board of Canada, "Sri Lanka: Information on the treatment of Sinhalese women who marry Tamil men", LKA 16980.E 13 This document contained the following two paragraphs which might be said to be conflicting: A professor specializing in Sri Lankan affairs at the University of New Brunswick in Fredericton states that, in normal times, ethnically-mixed couples do not face problems regardless of their place of residence in Sri Lanka (29 Mar. 1994). However, they might be ill-treated during ethnic riots (ibid). … In contrast to the previous sources, the secretary of the Tamil Eelam Society of Toronto states that Sinhalese women who marry Tamil men are likely to have difficulties wherever they live in Sri Lanka (29 Mar. 1994). The secretary explains that if they live in Tamil-dominated areas, Tamil militants might suspect them of espionage for the Sri Lanka government (ibid.). However, if they live in Sinhalese areas, the local Sinhalese people might consider them to be supporters of militant Tamil groups (ibid.). The secretary adds that such women should not expect "a happy life" irrespective of their place of residence in Sri Lanka. 14 It might be noted that the latter paragraph dealt with Tamil men married to Sinhalese women and not Tamil women married to Sinhalese men. The Tribunal made, it seems to me, a finding of fact on which it could be said there was evidence either way. It might have been right or wrong in its conclusion. However, I see no jurisdictional error. I see no basis to invoke the principles expressed in such cases as Boucaut Bay Co Ltd (in liq) v Commonwealth (1927) 40 CLR 98 at 101; R v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 430; Buck v Bavone (1976) 135 CLR 110 at 118-19; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 275-276; Australian Heritage Commission v Mt Isa Mines (1997) 187 CLR 297 at 302; Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at [34] and the other High Court cases referred to and discussed by Emmett J and myself in Bull v Repatriation Commission [2001] FCA 1832 at [23] to [25]. It was also said that legislation construed in this way would be seen as also requiring that the state, or lack, of satisfaction be based on findings or inferences of fact which are supported by some probative material or logical grounds: Minister for Immigration and Multicultural Affairs v Eshutu (1999) 197 CLR 611 at 657 [145] (per Gummow J). Even on this latter basis I see no infringement of principle by the Tribunal. 15 The second basis to this complaint about relocation alleges the failure to take into account the fact that there was no evidence that the authorities in the place to which relocation took place would act towards the appellants any differently to how the authorities where they had lived had treated them. 16 I think this is an attempt to force a complaint about fact finding into an inappropriate legal construct. Whilst the male appellant had been taken into custody and mistreated in the past, the Tribunal found that there was nothing in the evidence to suggest that the authorities ever believed that the appellants had assisted the LTTE. It was said that a critical piece of evidence had been ignored by the Tribunal, at least in respect of its significance. There was country information indicating that in areas in Colombo where Tamils live (to such areas relocation of the appellants being possible) "cordon and search" operations were often undertaken in which everyone was searched. So, it was said, the appellants would be questioned; and since they had suffered under interrogation in the past, it would occur again. 17 There are a number of difficulties with this argument. First, it cannot be said that the Tribunal ignored the evidence. The country information report containing the information was referred to by the Tribunal in its reasons. Secondly, this material is not such as to be required to be taken into account by law. It might be what the appellants or the Court consider or considers to be evidentially probative or persuasive, but that is not information mandated to be taken into account by the Migration Act or any other law. It is part of the factual material which the Tribunal was entitled to consider and to which the Tribunal was entitled to give weight in the making of its factual findings, no more. Thirdly, on the basis of the findings otherwise made by the Tribunal, the fact that the appellants may be or will be stopped and asked questions in any such "cordon and search" operation is not a basis to conclude that anything will happen to the appellants. 18 There was no error on the part of the Tribunal or the Federal Magistrate as disclosed by [3] and [4] of the Amended Notice of Appeal. 19 The other ground of appeal was set out in [2] of the Amended Notice of Appeal: 2. His Honour should have found that the RRT erred in law and constructively failed to exercise its jurisdiction in not considering all the applicants' claims taken together. Particulars His Honour should have found that the RRT erred in failing to address the applicants' case as it did not make a finding as to whether all the applicants' claims taken together would lead to a well founded fear of persecution, including a denial of capacity of the male applicant to earn a livelihood within the meaning of s 91S(2)(f) of the Migration Act 1958. 20 It was said that the Tribunal approached the matter of dismissing the appellants' claims in a discrete manner "without regard to the overall interplay of various circumstances". This was said to be contrary to, amongst other cases: W396/01 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 103; Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 292-3; and Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [7] per Merkel J. As to this, the Federal Magistrate said: The authorities cited by the applicant … are to my mind a caution to the Tribunal lest in consideration of discrete issues it fails to consider a separate claim that might involve consideration of those issues cumulatively. Thus in W396/01 v MIMA (supra) the Court found that the Tribunal failed to look at various pieces of evidence (most of which they had rejected individually) as the constituent of a sur place claim. The applicants in the case before me have not identified a new form of claim which has not been considered. They only identify various pieces of evidence which are considered individually against the integer of the claim of a well founded fear of persecution. The Tribunal appears to have carried out the task required of it in this regard. 21 This may well be a too narrow analysis of these cases as the appellants suggest. However, more fundamentally, I do not think that the Tribunal has approached the claims failing to have due regard for them as whole. The reasons of the Tribunal suggests a careful and measured weighing of all the material. I do not think that on an overall reading of the Tribunal's reasons, it has separately compartmentalised its dealing with the community and the authorities in such a way that is beyond mere organisation of expression for the purposes of clarity. I see no error in the approach of the Tribunal. 22 The appellants emphasised the male appellant having to leave his employment. It is said that the Tribunal failed to "address a claim" that the male appellant had been denied the capacity to earn a livelihood. However, the Tribunal considered the employment question at length. It was plainly considered by the Tribunal. 23 In the above circumstances, I can see no error in the reasons of the Tribunal and no operative error in the reasons of the Federal Magistrate. 24 I see no basis to conclude that there was any jurisdictional error of any kind into which the Tribunal fell. 25 The appeal should be dismissed with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.