Perera v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT Introduction 1 The applicant ("Mr Perera") applies under s 476(1) of the Migration Act 1958 (Cth) ("the Act") for review of a decision of the Refugee Review Tribunal ("RRT") affirming a decision of a delegate of the respondent ("the Delegate and "the Minister", respectively) not to grant him a protection visa. 2 Section 29 of the Act provides that, subject to the Act, the Minister may grant a non-citizen permission, to be known as a visa, to do one or both of the following: (a) travel to and enter Australia; (b) remain in Australia. It is not in dispute that the Minister delegated all relevant powers to the Delegate pursuant to s 496 of the Act. 3 Section 65 of the Act provides that after considering a valid application for a visa, the Minister, if satisfied of the matters specified in the section, is to grant the visa, or, if not so satisfied, is not to grant the visa. One of the matters specified in s 65 is that the criteria for the visa specified by the Act or the regulations have been satisfied. Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant for it is a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951, as "amended" by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (compendiously, "the Convention"). 4 Article 1A(2) of the Convention provides that a refugee is any 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; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it." 5 Criteria to be satisfied by an applicant for a protection visa at the time of the decision on the application also include the criterion specified in cl 866.221 of Schedule 2 to the Migration Regulations 1994, which is, again, that the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Convention. 6 The RRT's decision was a "judicially reviewable decision" (s 475(1)(b) of the Act), Mr Perera was entitled to apply to this Court for review of it on certain grounds (s 476) and the Court has the jurisdiction provided by Part 8 of the Act, but no other jurisdiction with respect to it (ss 485, 486). 7 Mr Perera's case is that he is outside the country of his nationality, Sri Lanka, and is unwilling to return to it because of a well-founded fear of being persecuted for reasons of imputed political opinion. Procedural background 8 Mr Perera entered Australia on 20 October 1997. On 20 January 1998 he lodged an application for a protection visa (visa sub-class 866). The Delegate refused the application on 6 March 1998. On 20 March 1998 Mr Perera applied to the RRT for review of the Delegate's decision. The RRT conducted a hearing on 7 December 1999. On 13 January 2000, the RRT affirmed the Delegate's decision. On 10 February 2000, Mr Perera filed his application in this Court for review of the RRT's decision. The reasons for decision of the RRT 9 The RRT commenced its reasons for decision by referring to the procedural background, the legislative framework and the law relating to the Convention definition of a "refugee". It then turned to consider Mr Perera's claims and evidence. These were found in his application for the visa, a statement dated 25 February 1998 furnished by his adviser to the Department of Immigration and Multicultural Affairs, a statutory declaration dated 7 December 1999 which he furnished to the RRT, and his oral testimony before the RRT at the hearing on 7 December 1999. His claims were along the following general lines. 10 Mr Perera was born on 3 January 1948 and is a citizen of Sri Lanka and is Sinhalese by ethnicity. He attended school from 1953 to 1963. From 1963 to 1970 he worked for a clock and watch company. In 1970 he joined the Sri Lankan Army as a private. He saw much action against the Liberation Tigers of Tamil Eelam ("LTTE") and received medals in recognition of his services. He also represented his battalion in Boxing and Rugby. During a Rugby tournament, he received a head injury. On 10 October 1986, he retired from the Army due to the injury, having risen to the rank of staff sergeant. After leaving the Army, on 5 December 1986, he established a business in Colombo, manufacturing jute wrappers for tea and cinnamon. He continued living in Colombo and operating his business there until he departed Sri Lanka on 20 October 1997 on a Sri Lankan passport to visit Australia to compete in the "Australian Masters Games". 11 It was only after arriving in Australia that he became aware, through telephone conversations with his wife, that the Sri Lankan authorities were seeking him as a result of a longstanding association that he had had with a Tamil businessman who conducted a grocery business in Jaffna, named Sivakumar Kandiah ("Kandiah"). It is to Mr Perera's account of that association that I will next turn. 12 In 1976, when he was working in the Army in Jaffna, Mr Perera renewed his friendship with Kandiah. The two men had been "best friends" and "hostel mates" at the Christian Missionary School that Mr Perera had attended until 1963. 13 From 1976 to 1986 Mr Perera used to meet Kandiah at his home in Jaffna. Over that time Kandiah treated Mr Perera well. In return, after he retired from the Army, Mr Perera made Kandiah welcome in his own home in Colombo. Mr Perera stated as follows in his statement dated 25 February 1998 that his migration consultant furnished to the Department: "At the time [1976] I came to know through him [Kandiah] that he was a member of the Tamil United Liberation Front (TULF)." (emphasis supplied) It is not in dispute that the TULF is a moderate, non-militant Tamil political organisation which is regarded with hostility by the violent LTTE and suffers much at its hands. 14 When Kandiah visited Mr Perera in Colombo, Mr Perera would accompany him to help him avoid checking at Army barriers in Colombo. Kandiah's trips to Colombo were mainly to attend meetings, apparently of the TULF, at various places in Colombo. Mr Perera received his friend as a visitor and assisted him in the way mentioned right down to the time when he (Mr Perera) left Sri Lanka for Australia on 20 October 1997. 15 Following the Games in Australia Mr Perera telephoned his wife on 26 October 1997 to tell her that he had won a bronze medal. She said that the Army and the Police had come to his home in search of him because of his association with Kandiah. She said he was being accused of supplying information to the LTTE through Kandiah, who was in truth a member or supporter of the LTTE masquerading as a member of the TULF, and who had been arrested. She said that when she told the police he (Mr Perera) had gone abroad, they said they did not believe her, assaulted her and told her to get him to surrender at the nearest police station. Mr Perera telephoned his wife again on 15 January 1998 and she said that she had been "harassed and severely interrogated" about his activities and movements prior to his departure from Sri Lanka and that he was being accused of carrying LTTE documents abroad. Mr Perera spoke to his wife again in February 1998 when she said that the situation had got worse. Subsequently, Mr Perera learned that in December 1998 his wife was taken for interrogation and was "severely interrogated". Then he learned that, in April 1999, a warrant had been issued for his arrest. His wife informed him that he had been charged in court arising out of his association with Kandiah. He also said that he learned that another warrant was issued in October 1999. 16 In oral testimony before the RRT, Mr Perera agreed that it had been difficult to maintain a close friendship with Kandiah at the beginning of the war between the LTTE and the Sri Lankan Government in 1983, and said that from that time he saw him only in the course of business. He said that after he (Mr Perera) left the Army in 1986, Kandiah, who resided throughout in Jaffna, used to come to Colombo every two months. Relevant to this matter is the following passage from the transcript of the proceeding before the RRT: "THE TRIBUNAL: And why was he coming to Colombo? INTERPRETER: According to the information that he gave me he is a member of the TULF. THE TRIBUNAL: That's the reason why he came? INTERPRETER: That's right." (emphasis supplied) Reasoning of the RRT 17 The RRT noted Country Information Reports to the effect that there was an absence of plausible reports of Sinhalese suspected of sympathising with the LTTE and that: "Apart from a Sinhalese collaborating with the LTTE for illegal gain, it is utterly implausible that a Sinhalese would support the LTTE." 18 The RRT noted that it did not have to have rebutting evidence available before it could lawfully hold that a particular factual assertion by Mr Perera was not made out. 19 The RRT was not satisfied that Mr Perera's claims and evidence were credible. It noted that it had before it only his unsupported assertions. It found his claims and evidence implausible, disbelieved him, and concluded that no political opinion had been imputed to him by the authorities and that they had no ongoing interest in him. 20 The RRT emphasised the close and longstanding relationship that Mr Perera claimed to have enjoyed with Kandiah. It noted that during the eleven years from 1986/1987 to October 1997 when Kandiah had been visiting Mr Perera in Colombo, there was no suggestion that Kandiah had encountered any difficulties either during his travels to and from Colombo or during his stays in Colombo. The RRT observed in this connection that: "The applicant gave evidence that Kandiah was travelling to Colombo for TULF business." The RRT found it implausible that Mr Perera would be regarded as a supporter of the LTTE because of his friendship with Kandiah. 21 The RRT pointed out that according to Mr Perera, Kandiah was arrested in October 1997 yet the warrant for his own arrest was not issued until April 1999 - eighteen months later. The RRT thought that if the authorities had believed that Mr Perera had any affiliation with the LTTE, they would not have waited so long before issuing a warrant for his arrest. The RRT also noted that although Mr Perera had produced other documents to it, he had not produced any evidence of the existence of the arrest warrant. It also recorded that he had produced no evidence to support his claim that his wife had been visited by the police. It observed that notwithstanding his claim that his wife had been "severely interrogated" several times by the police, she continued to reside at the same residence as previously. The RRT found the claims of visits by the police to the wife and of the issue of the arrest warrant not credible. 22 Finally, the RRT gave no weight to a letter dated 30 November 1999 from the Service for the Treatment and Rehabilitation of Torture and Trauma Survivors relating to Mr Perera, because it depended on what Mr Perera had told the Service. As well, the RRT found it surprising that Mr Perera had not sought assistance from the Service until October 1999, having regard to his claim that he had first become afraid as long ago as October 1997. Conclusions on the present application 23 The grounds relied on in Mr Perera's amended application are as follows: "1. The Tribunal failed to observe procedures required by the Act to be observed, erred in the interpretation of the law and made a decision not authorised by the Act. Particulars The Tribunal failed to consider and address the actual claims made by the applicant. 2. The Tribunal erred in law, being an error in the interpretation of the law, in that it failed to recognise that the applicant's testimony is evidence. 3. There was no evidence or other material to justify the making of the decision. Particular The Tribunal stated that 'The applicant has produced not a modicum of evidence to support his claim that his wife has been visited by the police', and that fact does not exist." 24 In submissions, Mr Perera relies on three errors of law. The first two are alleged failures to address the claims he made. Mr Perera submits that in failing to address his claims properly understood, the RRT failed to "review" the primary decision as required by the Act. He refers to Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at [17]-[19] per Wilcox and Madgwick JJ, at [58]-[60] per Hill J, and Minister for Immigration and Multicultural Affairs v Sameh [2000] FCA 578 at [40]-[43]. Mr Perera also submits that the suggested failure to understand and address the true nature of his claims was a failure to observe a procedure required by the Act to be observed (s 476(1)(a)), an error of law which went to the RRT's exercise of its jurisdiction (s 476(1)(e)), and a decision not authorised by the Act (s 476(1)(c)). 25 Because of the conclusions that I reach below, I do not need to address these submissions. First alleged error of law - failure to address Mr Perera's case - the distinction between claims of actual and claimed membership of the TULF 26 Central to the first alleged error of law is the distinction between a claim by Mr Perera that Kandiah was, as a matter of objective fact, a member of the TULF on the one hand and a claim by Mr Perera that Kandiah had said or claimed or alleged or led Mr Perera to believe that he was a member of the TULF on the other hand. Mr Perera submits that by erroneously thinking that he was making a claim of the former kind, the RRT was led to misjudge the significance of other evidence before it. In substance, the point made is that if Kandiah was in truth a member or supporter of the LTTE masquerading as a member of the TULF, then he, Mr Perera, would have been deceived as much as anyone else, and if the RRT had recognised this fact, as it should have, it would have appreciated that there was no inconsistency between his claims and the evidence before it. 27 Mr Perera points to a reference by the RRT to his claims and evidence that "Kandiah had a longstanding association with the TULF" and submits that a proper understanding of his written statement and oral testimony before the RRT is only to the effect that Kandiah told him that he (Kandiah) had such a longstanding association. Mr Perera submits that the RRT did not address the question raised by his actual case, which was whether it was plausible that a Tamil could pretend to be a member of an anti-LTTE group, while in fact working for the LTTE. 28 Mr Perera points out that, in the passage in his statement dated 25 February 1998 set out earlier, he said that, in 1976 when he renewed his friendship with Kandiah, he came to know through Kandiah that he was a member of the TULF. That is, although the knowledge referred to is spoken of as if it was knowledge of a fact, the attribution of it to Kandiah makes it clear that the claim was no more than one that Kandiah told him something and he believed it. 29 Similarly, Mr Perera emphasises that in the passage from his testimony before the RRT, also set out earlier, he said that it was "according to the information that [Kandiah] gave [him]" that Kandiah was a member of the TULF. 30 Mr Perera also submits that the RRT was wrong to think that it mattered that Kandiah had been able to travel to and from Colombo for years without being arrested, because his alleged affiliation with the LTTE was not known, or at least acted upon, until after Mr Perera left Sri Lanka. 31 In response to Mr Perera's submission, the Minister emphasises the longstanding and close relationship which Mr Perera claimed he had enjoyed with Kandiah and submits that it was appropriate for the RRT to approach the matter on the basis that Mr Perera's case was that Kandiah was, indeed, a member of the TULF. 32 Mr Perera's submission raises the question how his claims before the RRT were properly to be understood. A statement that a person was a member or associate of the TULF is a statement of a conclusion, based on what the speaker perceived or was told, and could be mistaken as the RRT well understood. But in my view this does not mean that such a statement is never to be understood as a claim that the conclusion is in accord with the objective state of affairs. How the statement is to be understood depends on the terms of the statement understood against its background and in its context. In my view, Mr Perera was inviting the RRT to proceed on the basis that Kandiah was indeed a long time member and supporter of the TULF. 33 Mr Perera was close to Kandiah in Jaffna for some ten years from 1976 to 1986 when he was posted to Jaffna for three months in each of those years, then for some eleven years from 1986 to 1997 when Kandiah visited Mr Perera in Colombo about every two months (say sixty six visits). Mr Perera was claiming to be a very close and longstanding friend of Kandiah. Mr Perera's claim was, in effect, that they spent countless hours in each other's company and in conversation. As well, on the occasions of the visits to Colombo, Mr Perera drove Kandiah around. There was every reason for the RRT to understand that Mr Perera's claim was that Kandiah was indeed a member and supporter of the TULF and there was nothing to suggest that his claim was otherwise. In the passage in his written statement referred to earlier, Mr Perera puts it forward as a fact that Kandiah was a member of the TULF, albeit a fact that Mr Perera had come to know "through" Kandiah. 34 The RRT relied on the fact that Kandiah travelled freely between Jaffna and Colombo. Mr Perera submits that if the RRT had understood his claim correctly, it would have placed no weight on that fact because it would have appreciated that his claim was that the authorities had arrived at their current understanding only after he left Sri Lanka. But Mr Perera last met Kandiah only two days before he left Sri Lanka on 20 October 1997. The RRT correctly appreciated that Mr Perera's claim was that Kandiah travelled freely between Jaffna and Colombo right down to the time of Mr Perera's departure for Australia. It thought it implausible, as it was entitled to do, that in the six days from 20 October to 26 October, the authorities had discovered the truth about Kandiah, arrested him and been seeking Mr Perera. 35 In my view, the relevant claim that Mr Perera advanced for consideration by the RRT was that Kandiah was indeed a member and supporter of the TULF. Second alleged error of law - failure to address Mr Perera's case - the RRT's treatment of the independent evidence 36 Mr Perera complains of the way in which the RRT used the "independent evidence" before it. He submits that the issue raised by his claim is not whether Sinhalese might in fact have supported the LTTE, but whether they might be suspected by the authorities of doing so. Mr Perera refers to the opening words of one of the two Country Information Reports on which the RRT relied: "Neither we, nor our contacts, have heard any recent plausible reports of Sinhalese suspected of sympathising with the LTTE." (emphasis supplied) 37 This passage, however, seems to be against the present submission. 38 The RRT stated that it found it "utterly implausible that [Mr Perera] would be imputed [sic - regarded] as a supporter of the LTTE". The RRT gave several reasons for holding this view. That view was, to paraphrase, that it was implausible that the authorities would suspect Mr Perera of supporting the LTTE. It is not amiss to recall that he was a retired Sinhalese soldier who had fought the LTTE over a period of some ten years. 39 In my opinion, the RRT did understand and address Mr Perera's claim that he was suspected of supporting the LTTE. But even if, in terms, the RRT had said no more than that it was implausible that he would in fact support the LTTE, in substance and in context the meaning of such a statement would have been to the same effect, that is, that it was implausible that the authorities would suspect him of supporting the LTTE.