Rajaratnam v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|1998-12-21|Before: Merkel JJ, Branson J

INTRODUCTION 1 This is an application under s 476 of the Migration Act 1958 (Cth) ("the Act") for review by the Court of a decision of the Refugee Review Tribunal ("the Tribunal") by which the Tribunal affirmed the decision of a delegate of the respondent not to grant the applicant a protection visa. 2 A criteria for a protection visa is that the decision-maker is satisfied that the applicant is a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (hereafter together referred to as "the Convention") (s 36 of the Act and Schedule 2 of the Migration Regulations cl 866.211). Australia has protection obligations under the Convention to a person who: "… owing to a 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 …." (Article 1A(2) of the Convention)

FACTS 3 The applicant is a forty-three year old Sri Lankan man of Tamil ethnicity who arrived in Australia on 11 April 1996. On 22 May 1996 he applied for a protection visa. His application was rejected by a delegate of the respondent on 30 September 1996. The applicant sought review of the decision of the delegate of the respondent. On 15 July 1999 the Tribunal affirmed the decision of the delegate. 4 The Tribunal accepted certain aspects of the applicant's claims and rejected others. As there is no challenge touching on those aspects of the applicant's claims that were rejected by the Tribunal, it is sufficient to set out a summary of the applicant's claims so far as they were accepted by the Tribunal. 5 The Tribunal found the applicant's claims and evidence to be "plausible and credible" to the extent that they related to problems which he encountered with a Lt. Ratnayake and to an incident of extortion which he experienced at a checkpoint in Kollupittya apparently in 1995. 6 The applicant's problems with Lt. Raynayake were of a serious nature. In summary, Lt. Ratnayake took possession of significant amounts of the stock of the shop jointly owned by the applicant and his business partner, Mr Yousuf, without paying for it. When the applicant complained to a senior army officer about Lt. Ratnayake's conduct, he suffered serious harassment in his shop at the hands of certain members of the army, and his life was threatened by Lt. Ratnayake. During the course of the incident Lt. Ratnayake said that it was his duty to eliminate all the Tamils from Sri Lanka, that there was no room for Tamils to be in the country and that Sri Lanka belonged to the Singhalese. 7 Subsequently, after receiving a letter from the Army requesting him to report to the army camp on a nominated day, the applicant was effectively abducted by Lt. Ratnayake and driven in a jeep to a house. He was blindfolded before arriving at the house. After spending some time in the house he was taken a short distance from the house and his blindfold was removed. He saw seven to eight soldiers with Lt. Ratnayake and two handcuffed and blindfolded youths. He was told that the two youths were members of the LTTE (Liberation Tigers of Tamil Eelan). Each of the youths was shot and killed by the soldiers. Their bodies were dumped into a river. 8 Lt. Ratnayake told the applicant that it was his last chance, that he was pardoning the applicant's life as the applicant did business with him but that the applicant should provide him with all that he wanted when he came to his shop. In fear of his life, the applicant agreed. 9 Soldiers took the applicant to a checkpoint near his home and asked him to go. The applicant was in a state of deep anxiety and spent three weeks in hospital. When he came to his senses he decided to leave the country. He only returned to the shop on a couple of occasions and Mr Yousuf took over the running of the business. 10 The incident of extortion occurred as the applicant was making arrangements to leave the country. At a checkpoint a small group of soldiers took his passport and 12,000 rupees that he was carrying. The soldiers said that they knew that the applicant was a LTTE suspect and that he was trying to flee the country. The applicant only obtained the return of his passport by paying the soldiers 120,000 rupees in four instalments.

REASONS OF TRIBUNAL 11 As to the applicant's problems with Lt. Ratnayake, the Tribunal in its written reasons for decision, said: "The applicant gave evidence that Lt. Ratnayake sought to do him harm because he made a complaint to the Army about Lt. Ratnayake's behaviour. He gave evidence that the incident in which he was kidnapped and brutalised by Lt. Ratnayake was because the Lieutenant wanted to scare the applicant into withdrawing his complaint. The applicant's witness gave evidence that Lt. Ratnayake would carry on a 'personal vendetta' against the applicant. Thus, although the applicant is a Tamil, the Tribunal is satisfied from the applicant's evidence that Lt. Ratnayake's motivation in seeking to harm the applicant in the past, and at any time in the future, was personal and not because of his race, religion, nationality, membership of a particular social group or political opinion. … The evidence supplied by the applicant at his hearing makes it clear that Lt. Ratnayake was interested in the applicant - not because of his Tamil race [or nationality] - but rather as an individual, initially because he was able to make money from their dealings, and later because he did not want the applicant to pursue any complaints against him. Lt. Ratnayake's interest in the applicant was purely personal, and not characteristic of any Convention grouping. The Tribunal therefore cannot be satisfied that the applicant has a well founded fear of being persecuted for a Convention reason." 12 As to the extortion incident, the Tribunal was satisfied that the applicant was targeted for extortion because he was a Tamil and that the extortion amounted to persecution within the meaning of the Convention. However, the Tribunal was not satisfied that the applicant's fear of suffering further extortion as a Tamil should he return to Sri Lanka was well-founded. The Tribunal noted that the applicant claimed to have experienced only one incident of extortion although until 1996 he had lived all of his life in Colombo apart from the years 1980-1984. 13 The Tribunal concluded on this issue: "Based on the applicant's own previous experiences and evidence at hearing, and in light of the independent evidence which suggests that the government is making attempts [albeit slowly] to redress the problems of extortion through the anti-harassment committees, and through official investigations, the Tribunal cannot be satisfied that there is a real chance of the applicant being extorted in Sri Lanka, in the foreseeable future. Rather, based on the applicant's own evidence the chance is remote and insubstantial. The Tribunal cannot therefore be satisfied that the applicant's fear of persecution for reasons of his race (extortion because he is a Tamil) in the foreseeable future in Sri Lanka is well founded. 14 The Tribunal was not satisfied that the applicant is a refugee within the meaning of the Convention.

CONSIDERATION 15 The applicant attacked the Tribunal's conclusion that Lt. Ratnayake's interest in the applicant was purely personal and not "characteristic of any Convention grouping". He placed reliance on decisions of this Court which have recognised that as a matter of common sense and practical reality, a particular event may have more than one effective cause (see, for example, Minister of Immigration and Multicultural Affairs v Sarrazola [1999] FCA 1134 (1999) 166 ALR 641 at paras 13-16 and the authorities there cited). 16 I see no reason to conclude that the Tribunal was led into legal error by its use of the word "motivation" rather than the language of the Convention "for reasons of …". The reasons of the Tribunal are not to be over-zealously scrutinised. In a number of authorities the importance of the identification of the motivation of a persecutor has been stressed (see, for example, Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 esp per Dawson J at 241 and Gummow J at 284; Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 at 568, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ at 574). The Tribunal correctly, in my view, identified the issue for its consideration as one of causation. Further, the emphasis placed by the Tribunal on its finding that Lt. Ratnayake's interest in the applicant was purely personal suggests that it was alert to the possibility of the applicant's harsh treatment by Lt. Ratnayake having more than one effective cause. The Tribunal is to be understood as rejecting this possibility as a matter of fact. 17 The applicant emphasised that the applicant was subjected to racial abuse by Lt. Ratnayake and accused of assisting the Tamil organisation, the LTTE. The applicant also drew attention to the evidence before the Tribunal that Tamil businessmen in Sri Lanka suffer harassment and that Tamils generally suffer human rights abuses in Sri Lanka. 18 I see no reason to conclude that the Tribunal overlooked these matters when it concluded that Lt. Ratnayake's interest in the applicant was purely personal. It referred in its reasons for decision to independent evidence from a number of sources touching on bribery and extortion in Sri Lanka with particular reference to Tamils. A differently constituted Tribunal might have reached a different decision on the evidence. However, it is not open to this Court to review the decision of the Tribunal on its merits. 19 To the extent that the Tribunal's decision was based on the conclusion that Lt. Ratnayake's interest in the applicant is purely personal, I am not satisfied that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal (s 476(1)(e) of the Act). 20 The applicant further contended that it was not open to the Tribunal to reason from a premise that the applicant had only been a victim of extortion once to a conclusion that he does not have a well-founded fear of extortion in the future. 21 As was pointed out by Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ in Guo at 574: "The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity." 22 The Tribunal plainly understood that it was required to assess the degree of probability that the applicant would suffer extortion for reasons of his being a Tamil should he return to Sri Lanka. It did not reach its conclusion solely on the basis that the applicant had only been a victim of extortion once in the past, although it did properly place weight on its finding in this regard. It referred also to the independent evidence touching on the level of extortion in Sri Lanka (which suggested that it was widespread) and to evidence that the government was making attempts to rectify the problem. The weight to be given to these various matters was a matter for the Tribunal. 23 A differently constituted Tribunal may well have reached a different conclusion as to whether the applicant has a well-founded fear of extortion for reasons of being a Tamil if he returns to Sri Lanka. However, I am not satisfied that the decision of the Tribunal, to the extent that it was based on the conclusion of the Tribunal in this regard, involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal. Merits review of the decision of the Tribunal is not available in this Court. 24 Finally, the applicant contended that procedures which were required by the Act to be observed in connection with the making of the decision were not observed (s 476(1)(a) of the Act) in that the reasons for decision of the Tribunal do not refer to the evidence or other material on which it based its finding that it could not be satisfied that there is a real chance of the applicant being extorted in Sri Lanka in the foreseeable future. As developed, this contention took on the character of a challenge to the weight attached by the Tribunal to a press report in the South China Morning Post which referred to a government-ordered investigation into an extortion scandal involving Tamils detained by city and suburban-based police, and to its failure to refer explicitly to a US Department of State Country Report on Sri Lanka from which its knowledge of the Anti-Harassment Committee was apparently derived. 25 There is Full Court authority binding on me to the effect that a failure by the Tribunal to prepare written reasons in accordance with the requirements of s 430(1) of the Act constitutes a ground of review under s 476(1) of the Act (Abdalla v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 11 at 19, Logenthiran v Minister for Immigration and Multicultural Affairs (Wilcox, Lindgren and Merkel JJ unreported, 21 December 1998), Perampalam v Minister for Immigration and Multicultural Affairs [1999] FCA 165, (1999) 55 ALD 431 per Burchett and Lee JJ at para 22, and Moore J at para 11, Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182 at paras 33-4). 26 For present purposes, the relevant requirements of s 430 are that the written reasons of the Tribunal must set out the Tribunal's findings on any material questions of fact and refer to the evidence or other material on which the findings of fact were based. The conclusion of the Tribunal that it could not be satisfied that there is a real chance of the applicant being extorted in Sri Lanka in the foreseeable future was not, in my view, a finding on a material question of fact. The Tribunal's relevant finding on a material question of fact was that "the chance [of the applicant being extorted in Sri Lanka] is remote and insubstantial." It was only required to refer to the evidence or other material on which the finding was based. It did so, in my view, by referring to the "independent evidence" upon which it relied in concluding that "the government is making attempts to redress the problem of extortion" and by referring to the applicant's evidence of his previous experiences in Sri Lanka. The "independent evidence" to which the Tribunal referred is now before the Court in the book of relevant documents prepared by the respondent. No suggestion has been put to the Court that the material referred to by the Tribunal as the "independent evidence" was not capable of being identified or has not been identified. 27 This ground of review must also fail.

CONCLUSION 28 The decision of the Tribunal will be affirmed. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson J.

Dated: 9 December 1999 Counsel for the Applicant: Mr L. Karp

Solicitor for the Applicant: McDonells Solicitors

Solicitor for the Respondent: Australian Government Solicitor

Migration Act 1958(Cth)ss 36, 430, 476

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