Santhikumar v Minister for Immigration & Multicultural Affairs

THE COURT: 1 The five appellants appeal from the decision of a Judge of this Court who dismissed an application for review of a decision made on 16 November 1998 by the Refugee Review Tribunal ("the RRT"). That decision rejected applications by the appellants for protection visas. 2 The case presented for the first four appellants, who are husband, wife and the children of the marriage, is the same as that of the first appellant who is the husband. In the case of the fifth appellant, who is the mother-in-law of the first appellant, some additional questions are raised. The facts and claims in these matters are fully set out in the reasons of the primary Judge and it is not necessary to repeat them here. 3 The RRT made strong adverse findings as to credibility against the first appellant in, inter alia, these terms: "I did not find the Applicant to be a credible witness. I consider that the Applicant demonstrated at the hearing before me that he would say whatever he considered was to his advantage, without regard to the truth of what he said. On more than one occasion, when confronted with evidence casting doubt on an answer that he had given, he sought to adjust his evidence to overcome the difficulty. By way of example, when I asked him why he would have sent an e-mail message to a discussion group appealing to Tamils to support the LTTE, he initially denied that he had said this at all. When I put to him that he had said in his original statutory declaration that one or two of the articles which he had submitted to the discussion group was 'an appeal to Tamils to forget their differences and support the LTTE', he said that he had argued that the struggle of the Tamils should not be abandoned and that only the LTTE would be able to carry on the struggle but that he had not simply asked Tamils to support the LTTE. Similarly, the Applicant progressively adjusted his evidence regarding when he heard of the arrest of two persons in July 1996. Even if I were to accept that, as the Applicant suggests, his initial answer - that he learned of the arrest of the two persons in a telephone call from a friend in Canada in January 1997 - was ambiguous, I would still be left with the fact that, when I asked the Applicant why he had not mentioned the arrest of the two persons at the Departmental interview, the Applicant asserted that he had in fact mentioned the call from Canada and the arrest of two persons at the Departmental interview. When I put to him that he had not mentioned the arrest of these two persons in July 1996 at the Departmental interview the Applicant then said that when his friend had telephoned from Canada he had mentioned that someone had been arrested and something belonging to the Applicant had been found and that because of this the authorities were looking for him. He said that he had assumed that it was the cassettes that had been found and he said that during the Departmental interview he had referred to the fact that it could have been the cassettes. The simple truth of the matter is that the Applicant did not mention the telephone call from his friend in Canada or the arrest of some person or persons at the Departmental interview. He did mention the cassette tapes, but only in such a way as to give the Departmental officer the impression that these were items that had been found among the household goods which he had left at the homes of his landlady and his friends in Peradeniya. He laid far more stress on the notes and books which had supposedly been found among his household belongings than on the cassettes. As is usual when applicants for protection visas are interviewed by Departmental officers, the Applicant was afforded time after the interview to make any further submissions or to clarify any matters which he thought might have been misunderstood at the interview. The Applicant availed himself of this opportunity. He himself provided three pages of written comments and his representative provided a ten page submission. Although the Applicant in his comments referred to the cassettes this was merely to clarify their content and the threat that he claimed they posed to him. He did not refer to where they had been found or how they had come into the possession of the army and he certainly did not refer to the call from his friend in Canada or what he now claims his friend told him." (Emphasis added) 4 The RRT's reasons also record doubt as to whether the link generated by the LTTE songs on the two cassettes would be likely to make him a target for persecution. The decision contrasts such a suggested inference with circumstances where an applicant had assumed a high profile or had some degree of notoriety. The presiding member did not accept that the first appellant had been branded by labourers in Kandy as a "Tiger" and that as such he was "the talk of the town" and therefore at risk of persecution. The member said that he could perhaps accept this claim if the first appellant was suggesting that he had been accused of a crime of some notoriety such as "masterminding" a terrorist attack. Nor did he accept that the first appellant had ever been sought by the authorities in Sri Lanka since he left that country to come to Australia in 1994. 5 The central issue as regards the first appellant was one of credibility. The RRT did not find him to be credible. The RRT member concluded that the first appellant had demonstrated at the hearing that he would say whatever he considered would assist his case without regard to the truth. 6 It is clear from the reasons for decision that an important issue, basic to rejection of the first appellant's evidence on the ground of lack of credibility, concerned the history of the various accounts given by him in relation to the cassette tapes. 7 The first appellant's submissions on this point were as follows: "1. A rejection of Dr Santhikumar's testimony as not credible was based [on the fact] that he failed to mention initially about the arrest of two Tamils at Kandy in possessions of audio tapes with LTTE's propaganda songs about Tamil freedom struggle. Santhikumar in-fact had mentioned about this incident and clarified in his Submission dated 2 October 1998 (page 217-218) to the RRT and the other Tribunal's doubts had been clarified by Submission dated 22 October 1998 (page 206-215) (par 4 in page 209 & 210). The RRT failed to consider the submissions of Santhikumar, his Migration Agent Leonard Karp and the interpreter's statement (page 219) before making its decision rejecting Santhikumar's claims. The rejection of Dr Santhikumar's testimony as not credible by the Tribunal was improbable and irrational as the Tribunal Member failed to address his mind to these Submissions and clarifications before making his decision. Justice Moore ought to have found that the failure of the RRT to consider the Submissions and fact is an error of law to be reviewed by court. 2. The Tribunal failed to deal with and make any findings in relation to these submissions. If accepted may have led to a different result. These submissions were particularly significant because of assessing the fear of persecution of Dr Santhikumar to the RRT decision. The Tribunal was obliged by S430(1)(e) of the Migration Act, to set out its findings and, by S430(1)(d) to refer to the evidence on which they were based." 8 In a memorandum sent to the RRT after the hearing, the first appellant sought to explain why at the Departmental interview on 19 February 1997 he failed to mention the arrest of the two persons who had his cassettes. The memorandum was dated 2 October 1998, approximately six weeks before the reasons for decision were delivered. The first appellant said that his reason for not mentioning the arrest at the Departmental interview was that he did not know for sure that the persons were known to him. He said that he mentioned in the Departmental interview that the Army had gone to the University and other places he had frequented, and had taken all his personal belongings that he had left in Kandy. He then mentioned that the Army wanted him because some of his possessions, and possibly the cassettes, had been taken from the arrested persons. (According to the Department's "Protection Visa Decision Record", the appellant told the Departmental officer that the police had found the tapes at the home of two Senior Lecturers (a married Sinhalese/Tamil couple) from the University who were taking care of the appellant's possessions.) 9 The memorandum then goes on to address what the first appellant had said before the RRT on being asked when he learned about the arrests. He said that the translation of his answer was inadequate and that he what he really meant by what he said was that it was not until he met (in Australia) a witness from Kandy in 1998 that he learned the details of the arrest. He said that after the telephone conversation in January 1997 with his friend in Canada, he thought one of the arrested persons might have been one of the friends to whom he had given his cassettes, and the other an acquaintance through him or a person to whom the tapes may have been transferred. 10 The second document referred to in the submissions above is a letter dated 22 October 1998 from the appellants' migration agent to the Tribunal making further supplementary submissions. The particular submissions in that letter which are referred to in this Appeal, are again those concerning the failure of the first appellant to mention the telephone call and the arrests earlier than the RRT hearing. They refer to another document being a misplaced written submission by the first appellant, to problems with the Tamil interpreter at the RRT hearing and to the "particularly aggressive manner" in which it is said the Departmental interview was conducted. 11 All of these explanations, as well as the interpreter's statement referred to in the submissions cited above, were in evidence before the RRT gave its reasons for decision on 16 November 1999. The weight to be given to the material was a question of fact for the RRT to determine. The RRT had the advantage of seeing the first appellant give evidence and of noting his responses to questioning. There was ample opportunity provided to him to make a full explanation of his position in response to the questions of the RRT. The telephone call from Canada in January 1997 informing the first appellant of the arrests, was obviously a matter of importance and would have been relevant to the Departmental interview conducted shortly afterwards, yet as the RRT noted it was not mentioned. 12 The RRT member in his reasons set out the history of the matter in relation to the tapes in considerable detail. He also listened to the tape of the Departmental interview and noted that the first appellant had not referred to the information which he had allegedly been given in the telephone conversation with his friend. 13 The first appellant's explanation appears to be that he did not mention the telephone call from Canada because at that stage the identity of the persons arrested had not become clear to him. He says that these doubts were resolved only later when he spoke with his friend from Sri Lanka in about mid-1998. However, there does not appear to have been a satisfactory explanation in relation to the central concern of the RRT member, which was that no reference had been made to the telephone call from Canada, on which his fear was said to be based. 14 It is clear from the RRT's reasons for decision that it did not fail to consider the explanations given by the first appellant and his agent in the additional written submissions. Further, the interpreter's statement does not disclose any material discrepancies that the RRT would be required to address specifically in its reasons. The fact is that having heard the first appellant's detailed explanation, the RRT member was not persuaded that he should accept it. Having regard to the above, it was, in our view, open to the RRT, with the benefit of all submissions and responses placed before it, to form the view which it did as to credibility. 15 The Court has often said that it will clearly scrutinise adverse findings on credibility where that process is relevant to a ground of review permitted to the Court by s 476(1) of the Act. In our view, no reviewable error of law has been demonstrated in relation to the adverse finding on credibility in this case insofar as the submission was based on the history of the cassettes and the notification of the persons arrested. Nor has there been a failure to deal with, and make findings in respect of, the additional written submissions on this point. Accordingly, the appeal fails with respect to the first to fourth appellants on these grounds. 16 An allegation of actual bias was also levelled at the RRT but the material falls far short of establishing this ground. Actual bias requires proof of the mental state of the RRT member with a view to demonstrating pre-judgment. The conduct of the proceedings and the detailed reasons formulated for the decision support the conclusion that the RRT member approached the matter with an open mind and was prepared to consider the submissions made by the appellant. This conclusion is further supported by the fact that the RRT member listened to the tape of the Departmental interview to see whether he had referred to the arrest. In addition, the reasons disclose that the RRT member took into account the supplementary submissions dated 22 October 1998 from the applicant's solicitor and the first applicant provided after the interview of 2 October 1998. Accordingly, there is no basis for a claim of actual bias and the appeal fails on this ground also. 17 The first appellant made two further submissions. The first of these is that the RRT failed to consider the changed circumstances in Sri Lanka after renewed hostilities in 1995 resulting in a crackdown on Tamils. In our view, on the RRT's reasons there is no basis for this submission. The RRT member considered the evidence of the bombing of the Temple of the Tooth in January 1998 and other country information, and then found as follows: "[t]here are no reports of which I am aware of further incidents of racially-motivated violence in Kandy since January 1998 and the Applicant's representative has not suggested in his submission that there have been such incidents. …I do not consider that the evidence suggests that such incidents of racially-motivated violence are encouraged by the Sri Lankan Government nor that the Government is powerless to prevent such incidents. …I am satisfied on the evidence before me that the Government of Sri Lanka has in the past provided, and will in the future provide, a level of protection to the Tamil community in Kandy sufficient to remove a real chance of persecution by racially-motivated mobs. I do not consider that the Applicant has a well-founded fear of being a victim of racially-motivated violence if he returns to Kandy". 18 The final submission for the first appellant is that the RRT misstated the nature of the fears held by him in respect of the retaliatory attack after the Kandy Temple of the Tooth bombing. He says that that his fear of persecution is as a Tamil from Valvettithurai. We again reject this submission on reviewing the RRT's reasons. The RRT member made various findings on this point, and on consideration of the evidence found that even if he accepted that people from Valvettithurai form a 'particular social group' for the purposes of the Convention, he did not accept that they are singled out for persecution 'by reason of' their membership of that group. There is no basis for rejecting this finding.