Rajenthiram v Minister for Immigration

Decision of the Tribunal 14 The Tribunal affirmed the decision of the departmental officer not to grant to the applicant a protection visa. After careful examination of the applicant's evidence, the Tribunal found that the applicant was not a "witness of truth". The Tribunal pointed to "significant differences" between what the applicant disclosed during his interview at the airport by an immigration officer and what the applicant has since disclosed to the Department and the Tribunal. In particular, the Tribunal referred to the applicant's failure to disclose at the airport interview his arrest and imprisonment in March 1998 in Colombo and concluded that the account provided in his statement and which he elaborated upon at the Departmental hearing and before the Tribunal was "a fabrication". 15 The Tribunal considered that the alleged inconsistency as to the applicant's account of the nature of his employer's business, and the unlikelihood of a person wanted by the police being able to depart from Sri Lanka using his own passport also pointed to the conclusion that the applicant's evidence was a fabrication. 16 The Tribunal accepted the evidence of the applicant that he left Sri Lanka travelling on his own passport. It noted that his passport had been updated on 1 July 1998 when a new photograph showing him as an adult was included and also details of his National Identity Card number and his occupation were added. The Tribunal concluded that the "obvious explanation" for the fact that the applicant's passport was updated on 1 July 1998 was that the applicant did not have any problems with the Sri Lankan authorities at that time. It rejected the applicant's evidence that he was able to pass through the Colombo airport using his own passport because his agent had paid bribes to officers at the airport. The Tribunal referred to "information" contained in a Danish Immigration Service report which the Tribunal considered "suggests that it is highly improbable that the agent would have been able to bribe the National Intelligence Bureau departure control officers." 17 The Tribunal concluded: "that if the Applicant faced demands for bribes from the police it was because his mother owned a boarding house and he was perceived as capable of paying such bribes rather than because of his race, his imputed political opinion or any other Convention reason." 18 The Tribunal did not accept that the Applicant was repeatedly arrested in 1993, 1994, 1995 and 1996 as he suggested. Nor did it accept that he was required to act as a "hooded man" to identify LTTE cadres nor that he was assaulted, kicked or otherwise tortured by the Sri Lankan security forces. 19 The Tribunal's reasons for decision record its ultimate conclusion as follows: "… there is nothing in the evidence before me to suggest that the Applicant will be of particular interest to the authorities if he returns to Sri Lanka now or in the foreseeable future. I accept that he is a Sri Lankan Tamil but I do not accept that, as a Tamil who was born in Colombo and who has been resident in Colombo by his own account since 1987, the Applicant will attract the suspicion of the Sri Lanka authorities by reason of his race alone or any political opinion which may be attributed to him by reason of his race. I do not accept that there is a real chance that the Applicant will be arrested if he returns to Sri Lanka as he claims, nor that consequent upon his arrest he will be assaulted, imprisoned, tortured or murdered if he returns to Sri Lanka. I do not accept, therefore, that he has a fear of being persecuted by reason of his race (Tamil) or his imputed political opinion (support for the LTTE) that is well-founded in the sense set out in the authorities above. I am not satisfied that the Applicant has a well-founded fear of being persecuted for a Convention reason if he returns to Sri Lanka. It follows that he is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Consequently the Applicant does not satisfy the criterion set out in subsection 36(2) of the Migration Act for the grant of a protection visa."

Consideration 20 The submissions made on behalf of the applicant departed somewhat from his amended application. No objection was taken by the respondent to this course. 21 The applicant contended that the Tribunal erred in its approach to the assessment of the applicant's credibility and thereby failed to adopt fair and just procedures and to act according to the substantial merits of the case (s 420 of the Act). Reliance was placed on the decision of Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126 . 22 In Kopalapillai the Full Court observed: "Whilst a decision maker concerned to evaluate the credibility of the testimony of a person who claims to be a refugee in Australia will need to consider, and in many cases consider sympathetically, possible explanations for any delay in the making of claims, and for evidentiary inconsistencies, there is not a rule that a decision maker may not reject an applicant's testimony on credibility grounds unless there are no possible explanations for the delay or inconsistency … Nor is there a rule that a decision maker must hold "a positive state of disbelief" before making an adverse credibility assessment in a refugee case." 23 It will ordinarily be difficult for an applicant to have a decision of the Tribunal set aside where the decision is based on the Tribunal's assessment of the applicant's credibility. As has been accepted in a number of cases, where the approach of the Tribunal to the assessment of an applicant's credibility was open to it on the material before it, was based on rational grounds and was arrived at after the consideration of matters that were logically probative of the issue of credibility, the Tribunal's assessment of credibility will not be open to challenge (see Full Court decisions in Emiantor v Minister for Immigration and Multicultural Affairs [1998] FCA 1186; Kopalapillai v Minister for Immigration and Multicultural Affairs; Careem v Minister for Immigration and Multicultural Affairs [1999] FCA 378). This Court may not, under the guise of identifying error of law, engage in merits review. 24 I am not satisfied that the Tribunal in this case erred in its approach to the assessment of the applicant's credibility. The Tribunal found that the explanation offered by the applicant for the significant differences between what he said when interviewed at the airport and his later evidence was incredible. No basis has been identified on which I could interfere with this finding. The Tribunal also found that the applicant made contradictory statements concerning his place of employment. The statements certainly were to some degree different. At the airport the applicant said that he had been working in a chilli export factory called 'People's Needs' as a purchasing officer. In his statement he said that he had been sent with other employees from 'People's Needs' to certain country areas to get vegetables, coconuts, spices and other food items which could be bought cheaply in those areas. It appears that the Tribunal found the variety of these intended purchases to be inconsistent with 'People's Needs' being a chilli export factory. The reasons for decision of the Tribunal reveal that it placed weight on matters of demeanour in making its finding that he had given contradictory evidence concerning his employment. I am not persuaded that this finding was not open to the Tribunal which had the benefit of seeing and hearing the applicant give evidence, albeit through an interpreter. These two findings were logically probative of the issue of the applicant's credibility and the Tribunal's overall assessment of the applicant's credibility is thus not open to challenge. 25 Complaint was also made that in assessing the applicant's credibility the Tribunal also placed weight on a report of the Danish Immigration Service ("the Danish report") but, in doing so, misinterpreted the significance of the relevant passage in the report. The Danish report includes the following passage: "On the question of corruption of officials in connection with illegal departure, both the NIB [National Intelligence Bureau] and the CID [Criminal Investigation Department] said that there had been cases in which it came to light that immigration officers had taken bribes and allowed people to leave on false papers … As regards illegal departure of wanted persons on documents made out in their own name, it was agreed that such a case would have to involve complicity on the part of one of the NIB departure control officers. It was added that, at any rate, no cases of NIB staff taking bribes had come to light over the last six years or so (the time for which the delegation's CID and NIB interviewees had been working at the airport)". 26 The Danish report goes on to set out the view of a representative of a western embassy who worked at the airport that the airport was " 'leaking like a sieve' with couriers virtually able to operate quite overtly". 27 It does appear to be the case that the Tribunal accepted a report of what certain NIB and CID officials had said to the authors of the Danish report as involving confirmation by the authors of the truth of what the officials said. Seen in the context of the whole of the relevant section of the Danish report it seems unlikely that the report intended to convey such confirmation. 28 However, this issue was peripheral to the Tribunal's conclusion as to the applicant's credibility and to its finding that he had not been arrested by the Sri Lankan authorities in March 1998. The Tribunal concluded that the fact that the applicant's passport was updated in July 1998 showed that he was not at that time wanted by the Sri Lankan authorities. Its conclusion, based in part on its reading of the Danish report, that the applicant's agent could not have bribed the National Intelligence Bureau departure control officers to allow the applicant to pass through the airport using his own passport, merely provided further support for its conclusion that the applicant was not wanted by the Sri Lankan authorities at the time that he left Sri Lanka. 29 This application for review so far as it is based on the Tribunal's approach to matters of credibility, and its findings of credibility, must fail. 30 The Tribunal did not accept the applicant's story that he had been repeatedly arrested in 1993, 1994, 1995 and 1996. In finding that he had not been so arrested the Tribunal had regard to the view which it had formed as to the applicant's credibility. It can not be said that there was no material before the Tribunal capable of justifying this finding, or that the finding necessarily involved an error of law. It was an important finding which suggested against the applicant having a well-founded fear of being persecuted for a Convention reason if he returns to Sri Lanka. 31 The applicant further contended that the Tribunal made no finding of fact concerning a significant claim made by him, namely that he was suspected of assisting the LTTE because LTTE people came to his home and as a consequence the police would interrogate him and beat him. As to this aspect of the applicant's story, the Tribunal said: "To the extent that the Applicant was suspected of aiding and abetting the LTTE or of providing it with financial support, there are acts which are proscribed under the law of Sri Lanka and the enforcement of such prohibitions would not amount to 'persecution' for the purposes of the Convention but rather would constitute conduct appropriate and adapted for legitimate ends of Government policy in the context of the threat posed to the Government of Sri Lanka by the LTTE: see Applicant A, … per McHugh J at 354-5." 32 The applicant also contended that the Tribunal should have recognised "that all conduct of police officers is not legitimate merely because it is in the context of a national emergency" and further should have speculated "whether the applicant had a well founded fear of persecution because of a political opinion imputed to him because of his association with those who allegedly visited him." It seems to me that the Tribunal is to be understood as concluding that if the applicant was suspected of aiding and abetting the LTTE because LTTE people came to his home, this was because his association with LTTE members in such circumstances gave rise to a reasonable suspicion of breaches of the law on his part. The attention paid to him by the authorities in such circumstances would not be for reason of imputed political opinion but by reason of his being suspected of having engaged in illegal conduct. 33 In any event there is, in my view, no reason to conclude that the Tribunal overlooked this aspect of the applicant's story when it reached the conclusion that the applicant was not wanted by the Sri Lankan authorities at the time that he left Sri Lanka, and that there was no reason to think that he would be of particular interest to the authorities if he returns to Sri Lanka now or in the foreseeable future. It is this conclusion that was fatal to the applicant's claim to be entitled to a protection visa. In my view, there is no ground of review open under s 476 of the Act upon which this conclusion can be challenged. 34 The application must be dismissed. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Solicitor (Advocate) for the Applicant: Mr L. Karp of McDonells Solicitors

Counsel for the Respondent: Mr R. Lancaster

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 11 March 1999

Date of Judgment: 14 April 1999