NALM v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT Introduction: 1 This is an application under s 39B of the Judiciary Act 1903 (Cth) for writs of certiorari and prohibition to quash a decision of the Refugee Review Tribunal ("the RRT") handed down on 19 February 2003. The RRT affirmed a decision of a delegate of the Minister refusing to grant the Applicant a protection visa. The Applicant also seeks an order for a writ of mandamus directed to the RRT and a declaration that the decision was made in excess of jurisdiction. 2 The Applicant is a citizen of Sri Lanka. He is a Tamil from Jaffna aged in his mid-twenties. He claimed to have a well-founded fear of persecution on the ground of his race or nationality as a Tamil, his Hindu religion, his membership of a particular social group namely as a young male Tamil, and his actual or imputed political opinion. 3 The RRT rejected the application on credibility grounds. Its decision is long, occupying 49 pages, and is unstructured in its approach to the various claims made. This means that it is not always easy to isolate the claims, the evidence and the findings made by the RRT in relation to each of the claims. 4 At my request, counsel for the Minister provided me with a chronological summary of the claims and findings with the relevant Court Book references and I was assisted by this in preparing my judgment. The Decision of the RRT 5 The RRT accepted some of the Applicant's claims but it rejected others. In particular, it accepted his claims of mistreatment at government hands from 1987 to 1993 when he was aged between 9 and 15 but it did not accept his claims of persecution based on events which were said to have occurred from 1995 to the time of his departure from Sri Lanka in November 2001. 6 The RRT accepted the Applicant's claim that he and his family were displaced from their home on the Jaffna Peninsula after the home was demolished in 1987 during fighting between the Indian Peace Keeping Force ("IPKF") and the Liberation Tigers of Tamil Eelam ("the LTTE"). 7 The RRT also accepted that subsequently the Applicant and his family lived in a refugee camp and then, from about 1989, in a district known as Batticaloa where he suffered a number of traumatic events. 8 As the RRT accepted, in April 1990 the Sri Lankan armed forces started an offensive against the LTTE in Batticaloa and the Applicant and his family were forced to flee. He became separated from his family and, as the RRT found, he was "very much upset and mentally distressed as a result". 9 The RRT also accepted that the Applicant and his family were questioned individually by army officers when they were living in a village in Batticaloa in 1991 and that one of the officers threatened to strangle and kill the Applicant. 10 Not unnaturally, the RRT accepted that these events, i.e. displacement, interrogation and severe physical threats, were very traumatic for the Applicant. He suffers from a stammer and the RRT accepted that it became more pronounced as a result of these events. 11 The Applicant called psychiatric evidence in support of his claims. The RRT accepted that the Applicant was suffering from anxiety and post-traumatic stress disorder symptoms, presumably as a result of the events to which I have referred. But the RRT noted the psychiatrist's belief that these symptoms could be reduced with Prozac and a course of counselling. 12 The RRT did not accept that the Applicant's psychiatric symptoms corroborated other claims to which I will refer later. 13 There was one claim which the Applicant made about the events of 1991 which the RRT did not accept. This was that in 1991 his elder brother joined the LTTE. The RRT did not accept this claim because it was inconsistent with information which the Applicant gave when he completed an application for a student visa to enter Australia. He completed the application in Colombo in September 2000. 14 The inconsistency between the answers on the student visa application and the Applicant's claims was a central reason why the RRT rejected the Applicant as a credible witness. It referred on a number of occasions to inconsistencies between the answers on the student visa application and his claims of persecution. 15 By a letter dated 19 September 2002, the RRT supplied the Applicant with particulars under s 424A of the Migration Act 1958 (Cth) ("the Act") of the inconsistencies between the information he provided in his protection visa application and his answers on his student visa application. These particulars were supplied as a reason for deciding that the Applicant was not entitled to a protection visa and he was invited to comment. 16 In dealing with the inconsistency about his brother's activities the Applicant responded by stating that if he had divulged to his Sri Lankan interviewer in Colombo that his brother had joined the LTTE he believed that the interviewer would inform the authorities thereby jeopardising the safety of his family. 17 The RRT made the following remarks about the Applicant's answer:- "With respect, this does not explain why the Applicant would have told what he now claims was a lie, saying that his elder brother had just completed NIBM and ACS and was now running a business from home assembling computers. He could for example have said that he did not know where his elder brother was (as he indeed claimed was the case in his answer to question 11 on Part B of his original application for a protection visa) rather than telling what he now claims was a lie". 18 Returning then to the chronological account of the Applicant's claims, the RRT accepted that in 1993 the Applicant was mistreated when he visited his grandfather in Batticaloa. On that occasion he was questioned by a member of the People's Liberation Organisation of Tamil Eelam ("PLOTE"). The RRT accepted that he was assaulted and mistreated by that person because he was from Jaffna. 19 The Applicant claimed that in about March or April 1995, while peace talks were under way between the Government and the LTTE, he and his mother and elder sister travelled to Jaffna. He claimed that after the peace talks failed he had to flee from Jaffna and that he was mistreated both by the LTTE and government forces before eventually returning to Colombo in December 1995. 20 The RRT did not accept this claim because it was inconsistent with the information and documents submitted by the Applicant in his student visa application. The RRT referred to this in the s 424A letter as a reason for deciding that he was not entitled to a protection visa. 21 The information and documents submitted by the Applicant in his student visa application stated that he had been living in Colombo attending the Colombo Hindu College from 1992 to 1998. 22 The Applicant admitted to the RRT that he had made false statements in his student visa application but he said he did so because his aim had been to come to Australia for a peaceful life. 23 The Applicant submitted further documents which qualified the information given in the earlier documents in order to make good his claim that he was in Jaffna rather than in Colombo for most of 1995. 24 However, the RRT found that these documents were fabricated in an attempt to explain contradictions between his present claims and the information supplied with his application for a student visa. 25 The RRT's finding on this claim was as follows:- "I prefer the evidence contained in the Applicant's application for a student visa, in the documents accompanying that application and in his original application for a protection visa. As stated above, I consider that that evidence indicates that the Applicant resided in Colombo and continued to attend Colombo Hindu College throughout the period during which he claims he travelled to Jaffna." 26 The Applicant submitted to the RRT that there was no inconsistency between the answers he gave in his application for a protection visa as to the addresses where he had lived and his evidence in an accompanying statement that he had travelled to Jaffna in 1995. He said that there was no inconsistency because he did not claim to have been in Jaffna for twelve months or more. 27 The RRT dismissed this submission in the following passage:- "It is true that question 32 on Part C of the application form seeks details of addresses where an applicant has lived 'for 12 month or more' but, if the Applicant's evidence were to be accepted , he did not live at the address he gave in Colombo 6 (Wellawatte) between March or April 1995 and December 1995. Likewise question 34 seeks details of the periods (From Month/Year to Month/Year) for which an applicant attended named schools or other educational institutions. If the Applicant's evidence were to be accepted he attended Colombo Hindu College from January 1992 to December 1994 and again from January 1996 until August 1998, not from January 1992 to August 1998, as he stated in his application for a student visa and again in his original application for a protection visa. I consider that there is a clear inconsistency in the Applicant's evidence in this regard." 28 The Applicant claimed that on 23 July 1999 he was detained and sexually assaulted and beaten by police in Colombo over a period of about two to three weeks. He claimed that when he was arrested he was in the company of a fellow student named Krishna. He said he guessed that Krishna was "a hard core member of the LTTE who was pretending to be a student". The Applicant claimed that he had been admitted to hospital after his release and that he had subsequently applied for a passport which was issued on 7 September 1999. 29 The RRT noted that this claim was inconsistent with information contained in the Applicant's student visa application (which was put to him in the s 424A letter) which stated that the Applicant had studied at the British Business College in Colombo from 12 July 1999 to 1 March 2000 and that he had made bank withdrawals on 5 August 1999 and 16 August 1999. The RRT stated that these events occurred at times when, if his current evidence was to be believed, he was in police custody. 30 The RRT's findings were that it did not accept that the Applicant was arrested with Krishna, detained, tortured and sexually assaulted, nor that he was admitted to hospital after his release. 31 The RRT rejected these claims because they were inconsistent with the information contained in the Applicant's student visa application. 32 The RRT gave a further reason for rejecting these claims. This was that although the Applicant obtained his passport on 7 September 1999, he did not leave Sri Lanka until March 2001 when he travelled to India. Moreover, the RRT said that despite his claimed fear of being persecuted in Sri Lanka, he returned there from India in April 2001 and did not leave again until he came to Australia in November 2001. 33 The Applicant claimed that when he returned to Sri Lanka from India in April 2001, he was detained and mistreated and sexually assaulted by the same police officer who had assaulted him in 1999. 34 The RRT did not accept this claim because it rejected the claim that he had been assaulted in 1999. 35 The RRT gave a further reason for rejecting this claim, namely that it was inconsistent with his ability to depart Sri Lanka legally using his own passport in March 2001 and November 2001. 36 The Applicant also claimed that between his release in April 2001 and his departure from Sri Lanka in November 2001, police officers visited his home "under pretext of checking" and "with ulterior motives". He submitted a letter said to be from a lawyer confirming that this was so and stating that his life was in danger in Sri Lanka. 37 However, the RRT rejected this claim having regard to the Applicant's ability to leave Sri Lanka unimpeded, travelling on a passport in his own name in March 2001 and November 2001. 38 Indeed, the RRT considered that this claim, as well as the Applicant's account of his arrests in July 1999 and April 2001 were fabricated in order to support his application for a protection visa. 39 The RRT also rejected the Applicant's submission that the medical evidence which he called corroborated his claims to have suffered torture and trauma at the hands of the Sri Lankan armed forces and police in 1995, 1999 and 2001. The RRT was of the view that there were inconsistencies in the medical evidence and that it had been tailored to support the Applicant's claims. 40 The Applicant made a submission to the RRT that if he returned to Sri Lanka he would face problems as a failed asylum seeker returning to Colombo. 41 The submission was in writing and was dated 22 April 2002. The RRT recorded the submission and said that it was made by the Applicant's representatives. 42 However, the RRT was of the view that since the Applicant left Sri Lanka legally, travelling on a valid passport in his own name he would be able to return there like any other traveller. The RRT cited country information to support that proposition. 43 The RRT accepted that the Applicant's identity card would show that he was born in Jaffna, that is to say, that he may be considered by the Sri Lankan authorities to have a possible LTTE profile. 44 However, the RRT rejected that submission (albeit implicitly) on the ground of independent country information which it put to the Applicant that security had been relaxed following a change of government and a ceasefire and the lapsing of Emergency Regulations in July 2001. All of this was said to have reduced the likelihood of police harassment in Colombo. 45 The RRT also put to the Applicant that the first round of peace talks between the government and the LTTE had concluded successfully in September 2002. The RRT considered that the peace process had a greater chance of success than before because of the involvement of the international community. 46 The RRT then recorded in some detail the submission put by the Applicant as to his possible LTTE profile in the following passage:- "In their submission dated 21 November 2002 the Applicant's representatives submitted that the Applicant was 'vulnerable to the Sri Lankan authorities and when they interrogate him how the authorities would interpret him'. They submitted that if the Applicant were to face further interrogation and detention his physical and mental condition was likely to deteriorate. They submitted that the Sri Lankan security forces could impute the Applicant with an LTTE profile because he was a Tamil from Jaffna and was suspected of being involved with the LTTE in the North or that his background would not distinguish him from Tamils from the North who were likely to be regarded by the Sri Lankan security forces as possible collaborators with the LTTE. They submitted that there was a real chance that the Applicant would again be arrested, mistreated and tortured if he were to return to Sri Lanka now or in the 'reasonable future'." 47 The RRT cited various authorities including Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288 for the proposition that the decision-maker must make his or her decision as to whether an applicant satisfies the definition in the Convention as at the date of the decision having regard to all the circumstances placed before the Tribunal up to that date. See also Minister for Immigration and Multicultural Affairs v Guo Ping Gui [1999] FCA 1496 at [35] per Heerey J. 48 The RRT accepted that there are many obstacles to a final resolution of the conflict with the LTTE. It also accepted that there have been breaches of the ceasefire. It then said:- "However such breaches of the ceasefire do not in themselves suggest that there is a real chance that the Applicant will be persecuted by the Sri Lankan authorities for a Convention reason if he returns to his home in Colombo now or in the reasonably foreseeable future." 49 The RRT's conclusion was as follows:- "Having regard to all of the evidence before me I do not accept that, if the Applicant returns to his home in Colombo now or in the reasonably foreseeable future, there is a real chance that he will be arrested and tortured or sexually assaulted or otherwise persecuted by the Sri Lankan authorities by reason of his race or nationality (Tamil), his religion (Hindu), his membership of any particular social group for the purposes of the Convention such as Northern or Jaffna Tamils or Tamil males from the North, his actual political opinion or any political opinion imputed to him (support for the LTTE)." The Hearing of the Application: 50 The Applicant appeared in person. He filed written submissions and addressed me orally. 51 I distilled nine submissions from what he put to me and I will deal with each of them under the headings set out below. Whether the RRT considered the Applicant's claim to have a well-founded fear of persecution as a Tamil youth 52 The RRT recorded the Applicant's submissions on this claim in the passage which I have set out at [46]. 53 Counsel for the Minister submitted that the RRT considered and disposed of the claim in the passage which I have set out at [49]. 54 Although the RRT's conclusion set out at [49] does not refer specifically to the submission about the Applicant's profile, in my opinion on a fair reading of the passage the RRT did consider and dispose of the claim. 55 It seems to me that the reference in this passage to "all of the evidence" must be taken to cover two things. First, it refers to the evidence which the RRT rejected that the Applicant had been assaulted and mistreated in 1995, 1999 and 2001. The effect of the RRT's findings on this evidence was that the Applicant had lived in Colombo for nearly ten years without persecution. 56 Second, it refers to the independent country information about the relaxed security, the ceasefire and the peace talks. Thus, the effect of the RRT's conclusion was that even though the Applicant is a young Tamil male with a possible LTTE profile, there was, at the date of the decision, a reduced likelihood of police harassment of such persons and he therefore did not have a well-founded fear of persecution on this ground. Whether the RRT considered the Applicant's claim that he had a well-founded fear of persecution in Sri Lanka as a failed asylum seeker in Australia 57 The RRT recorded the Applicant's submission on this claim. I referred to this at [40]. 58 The RRT dismissed the submission on the basis of country information which indicated that since the Applicant left Sri Lanka legally he would be able to return without difficulty. I referred to this at [42]. Whether the Applicant's claim ought to have succeeded on the ground that other Tamil youths from Jaffna have been awarded refugee status 59 Each claim must depend on its own circumstances. Accordingly, this submission must be rejected. Whether the RRT failed to have regard to its own finding that the Applicant was suffering from anxiety and post-traumatic stress 60 The RRT seems to have accepted that these symptoms arose from the Applicant's mistreatment, in particular from his displacement and the death threats made to him by an army officer in 1991. 61 But it does not follow from this that the RRT was bound to accept the Applicant's claim to refugee status. It had regard to the finding. However, it would not accept that the psychiatric symptoms corroborated the Applicant's claims of persecution in 1995, 1999 and 2001. 62 The Applicant failed because the RRT did not accept his evidence about the events from the middle of 1995 to the time of his departure. 63 In coming to this view, the RRT accepted that in the proof of refugee status a liberal attitude is called for. It cited the decision of Beaumont J in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 as authority for that proposition. However, it said that this should not lead to an uncritical acceptance of any and all allegations made by an applicant. 64 In the absence of bias (as to which see later) the credibility findings which the RRT made were open to it as matters of fact for the RRT to determine. No error is demonstrated by this approach notwithstanding that other minds may have taken a different approach; Re Minister for Immigration and Multicultural Affairs ex parte Durairajasingham (2000) 168 ALR 407 at [67] (per McHugh J); Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-559 (per O'Connor, Branson and Marshall JJ); W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [64] - [69] (per Tamberlin and RD Nicholson JJ). Whether the RRT was required to take into account the fragility of the peace negotiations 65 The RRT was required to consider what would happen upon the Applicant's return and in the reasonably foreseeable future. 66 However, it seems to me that it did so. I referred to what the RRT said on this issue at [45] and [48] above. 67 The RRT reached its finding on the basis of independent country information. No error is demonstrated. Whether any error of law was demonstrated in the RRT's approach to the Applicant's attempt to "relocate" to India 68 The Applicant submitted that the RRT's approach to this question disclosed error. He pointed to the following passage from the US State Department's Country Report on Human Rights Practices - 2001 in the section dealing with India:- "The law does not contain provisions for processing refugees or asylum seekers in accordance with the 1951 U.N. Convention Relating to the Status of Refugees and its 1967 Protocol, nor is there a clear national policy for the treatment of refugees. The office of the U.N. High Commissioner for Refugees (UNHCR) has no formal status, but the Government permits the UNHCR to assist certain groups of refugees (notably Afghans, Iranians, Somalis, Burmese, and Sudanese)." 69 However, counsel for the Minister pointed out that the following passage on the same page of the report supports the remarks made by the RRT:- "The Government recognizes certain groups, including Chakmas from Bangladesh, Tamils from Sri Lanka, and Tibetans as refugees and provides them with assistance in refugee camps or in resettlement areas. According to the UNHCR and government statistics, there were approximately 110,000 Tibetans, approximately 64,990 Sri Lankan Tamils in 131 camps, and perhaps as many as 80,000 Sri Lankan Tamils outside of the camps living in the country at year's end." 70 It seems to me that the short answer to this issue is that the question was not whether it was open to the Applicant to relocate to India. That was not the way the RRT approached the matter. Rather, its approach was that there had been a delay of 18 months between the issue of the Applicant's passport and his trip to India. In the RRT's view this showed that the Applicant did not have a real fear of persecution in Sri Lanka. Moreover, having left for India he returned to Sri Lanka for some months before his departure for Australia. 71 The question was one of fact for the RRT. No error of law or jurisdictional error is revealed. Whether the RRT should have asked itself the question "what if I am wrong?" 72 The RRT was in no doubt as to its finding that the Applicant did not have a well-founded fear. Accordingly, there is no room for the application of this principle; cf Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [62] - [67] (per Sackville J). Whether the RRT failed to act "judicially" 73 In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367, Deane J said:- "If a statutory tribunal is required to act judicially, it must act rationally and reasonably. Of its nature, a duty to act judicially (or in accordance with the requirements of procedural fairness or natural justice) excludes the right to decide arbitrarily, irrationally or unreasonably. … When the process of decision-making is disclosed, there will be a discernible breach of the duty if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact. Breach of a duty to act judicially constitutes an error of law which will vitiate the decision." 74 His Honour's remarks were quoted by Gleeson CJ in Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 190 ALR 402 at 408. 75 No allegation of breach of the rules of natural justice were made except to the extent that it was said that the RRT was biased. 76 The allegation of bias was based solely upon the reasons of the RRT. This is not one of the rare and extreme cases in which bias can be demonstrated from the written reasons. There is nothing to suggest that the RRT failed to approach its task with an open mind; see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [36] - [38] per von Doussa J. 77 The Applicant, perhaps not unfairly, thought that he had what seems to be a reasonable explanation for the inconsistencies exposed by the RRT. However, the RRT was not bound to accept his explanation and failure to do so does not constitute bias. 78 There is nothing in the RRT's reasons which offends the illogicality principle; see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 A [2003] HCA 30. Nor was the decision "unreasonable". Moreover, the findings of fact were, as I have said, open to the RRT. Whether there was inconsistency between the Applicant's answer to Question 32 in the protection visa application and his evidence before the RRT 79 Question 32 requests details of addresses outside Australia where an applicant has lived for twelve months or more in the last ten years. 80 The Applicant stated in his answer that he had lived at a particular address in Colombo from May 1994 to November 2001. This period included the period from March or April 1995 to December 1995 when the Applicant said in his evidence that he had returned to Jaffna. 81 The RRT was of the view that there was a "clear inconsistency" because if his evidence was to be accepted he did not live at that address for about nine months in 1995 whereas his answer to the question stated that he did so. 82 I do not think there was a clear inconsistency. The answer to the question merely required qualification. However, it does not seem to me that the RRT's approach to this issue contributed to the outcome; see Bond at 384. It is plain that the RRT had other reasons for rejecting the Applicant's claims on credibility grounds. Conclusion and Orders 83 It follows that the orders I will make are that the application is dismissed with costs. I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.