Sivasubramaniam v Minister for Immigration & Multicultural Affairs

Federal Court of Australia (Full Court)|2002-01-01|Before: Hely J, Moore J, North JJ

THE COURT: 1 The first and second appellants are husband and wife who are Sri Lankan Tamils born in Jaffna. The third and fourth appellants are their children. They appeal against a judgment of the primary judge (Hely J) given on 3 August 2001 dismissing their application. That application sought review by the Court of a decision of the Refugee Review Tribunal ("the Tribunal") given on 26 February 2001 in which the Tribunal affirmed a decision of a delegate of the respondent not to grant protection visas (class AZ) to the appellants. The visa had been sought pursuant to the provisions of the Migration Act 1958 (Cth) ("the Act"). 2 The same applications had been the subject of a prior decision by the Tribunal on 22 February 2000 in which it affirmed the decision of a delegate of the respondent not to grant protection visas to the first and second appellants. On 2 August 2000 that decision was set aside by order of Moore J and the matter remitted to the Tribunal for reconsideration. In his Honour's reasons he stated there had been a failure of the Tribunal to consider evidence of the appellants that they had been accepted as refugees in Switzerland and the evidence of the first appellant that this would be evident from his passport and would draw attention to them on re-entry into Sri Lanka. The reconsideration by the Tribunal led to its further decision of 26 February 2001 in relation to which Hely J dismissed the application for review. (Paragraphs quoted below from the Tribunal's reasons of 26 February 2001 have been given a letter to facilitate subsequent reference in these reasons).

Tribunal's Findings 12 The Tribunal made the following findings: (1) It accepted the second appellant's account of her experiences in Sri Lanka in the early 1980s and in particular that she was pressured to join or help the LTTE both before she went to Singapore in 1982 and in the months following her return in 1986 before she went to Switzerland in October. (2) It accepted the first appellant's account of his experiences in Sri Lanka in the early 1990s. (3) The appellant parents met in Switzerland and married there in 1987 and the children were born there in 1987 and 1992 and are Sri Lankan citizens, having no claim to Swiss citizenship and no automatic legal right to reside and work in Switzerland. (4) The appellants applied for refugee status on one or more occasions after their arrivals in Switzerland and were issued B permits which were renewed annually together with multiple re-entry visas which had expired in each case in 1998. (5) Their fears of persecution if they returned to Sri Lanka now were not well-founded: "In summary this is because it has been 20 years since the Applicant husband lived in Sri Lanka for any length of time and then it was in Jaffna for 6 months in the first half of 1984, and almost as long in respect of the Applicant wife, except for some time in 1986 after her return from Singapore and before she went to Switzerland in October 1986 and the Tribunal is satisfied it is not plausible that they are now adverse interest to the authorities or the LTTE for any reason." (6) The second appellant's claims to fear arrest, attention and mistreatment as an LTTE suspect because of her sister having joined the LTTE in 1981 were implausible particularly as her passport showed only her married family name. (7) The claims by the first and second appellants to fear of being identified by the authorities or by former fellow students now members of pro-government Tamil groups, because they were pressured to join the LTTE or had to help the LTTE before they went to Switzerland were highly implausible. (8) There was no evidence to support the first and second appellant's assertions that there are masked people at the airport watching all arrivals to identify LTTE members, their families or those suspected of LTTE links. (9) The claim by the first appellant that he would be of adverse interest because he had applied for or was granted refugee status in Switzerland which would have been apparent from his passport was not supported by the independent evidence and was implausible. (10) Claims by the first and second appellants to fear harm just because they were Tamil and would be suspected of being LTTE members or involved with the LTTE as such were rejected. (11) In relation to the relevance of the experience in Switzerland the Tribunal said: "The Applicants claimed that they were subjected to extortion by the LTTE in Switzerland; their written evidence indicates that this went on since at least the mid 1980s yet later they claimed that it was only a serious problem from 1995/1996. The Tribunal accepts that it is widely known and reported that the LTTE extorts money or receives voluntary contributions from an international Sri Lankan Tamil diaspora of 450,000 ("Tamil Tiger International" A Davis Jane's Intelligence Review 1 October 1996). Even if in the Applicant's case, the Sri Lankan authorities know or suspect that the Applicants contributed financially to the LTTE when they lived in Switzerland, there is no evidence to suggest that this would bring them to the adverse attention of the Sri Lankan authorities on return to Sri Lanka. Furthermore it has now been some years since they paid money to the LTTE and the Tribunal does not accept as plausible that this activity or suspicion thereof results in adverse consequences on return to Sri Lanka. Also, independent country information about returnees does not suggest that this occurs." (12) In relation to the relocation of the appellants the Tribunal said: "If the Applicants had difficulties returning to the Jaffna area or because of the hardships there chose not to do so, they could settle in Colombo, as have more than a hundred thousand Tamils from the north, or elsewhere in the country, particularly in the South; the Applicants have shown, by living in foreign countries, that they can settle in unfamiliar surroundings successfully." (13) In relation to the LTTE generally: "The Tribunal does not accept as plausible that the Applicant parents or children, as long as they remain outside LTTE controlled areas in the north, would be of interest to the LTTE for any reason. Neither Applicant ever claimed that they actually joined the LTTE and the Tribunal does not accept as plausible after all these years that the LTTE would approach them for any reason on return to a Government controlled area such as Colombo; the LTTE is a highly trained terrorist organisation and the independent country information suggests that it does not pursue or target ordinary Tamils in Colombo for money or assistance ("Information regarding LTTE action against their opponents" Australian High Commission Colombo 12 May 1993 CX1808; "CIR No.445/98" DFAT 9 December 1998 CX32928). In any case the Tribunal is satisfied that if the Applicants were troubled by the LTTE in Colombo, that the "Sri Lankan security forces take action against complaints made by all communities in Sri Lanka if they pertain to areas where the government has control ("LKA34882.E" Canadian DIRB 31 July 2000" (14) As a preamble to its conclusion that protection obligations were not owed to the appellants, the Tribunal said: "Having considered the Applicants' evidence the Tribunal is not satisfied that the Applicants have a well-founded fear of persecution for reason of their Tamil ethnicity or for reason of a pro-LTTE opinion imputed to them by the authorities or for reasons of an anti-LTTE opinion imputed to them by the LTTE, or for any other Convention reason. As the Tribunal is satisfied that the Applicants do not have a well-founded fear of persecution within the meaning of the Convention in Sri Lanka it is not necessary to consider their claims of harassment and extortion in relation to Switzerland."

Reasons of primary judge 13 Hely J was of the view that a fair reading of the Tribunal's decision indicated that it had taken into account the appellants' claims as to extortion whilst they were in Switzerland. He found that the Tribunal had inferentially accepted those claims but had come to the conclusion that they did not give rise to a well-founded fear of persecution at the hands of the Sri Lankan authorities. He also found that the Tribunal concluded that the appellants were not exposed to a real chance of harm on the part of the LTTE and, in any event, effective state protection was available with respect to any harassment on the part of the LTTE.

14 His Honour based these conclusions on a consideration of the findings in pars (11) and (13) above.

15 The second ground argued before Hely J was that "the Tribunal acted beyond jurisdiction in failing to consider the totality of the applicants' claim": s 476(1)(b). This was firstly particularised as the Tribunal having "failed to consider whether the first and second applicants' actual (as opposed to perceived) activities in Switzerland put them at real risk of persecution from the LTTE upon their return to Sri Lanka".

16 When argued before Hely J this particular was pressed with reference to the final sentence of the paragraph quoted in finding (14) above and an alleged general failing of the Tribunal to make any findings in relation to what occurred to the appellants in Switzerland. Hely J referred to his prior findings. He expressed the view that the Tribunal had made findings in relation to what occurred to the appellants in Switzerland and had assessed whether those occurrences gave rise to a well-founded fear of persecution if the appellants were returned to Sri Lanka.

Grounds of appeal 17 Leave was given to the appellants to rely upon an amended notice of appeal. It raises three grounds. The first is that the Tribunal erred under s 476(1)(b), (c) or (e) of the Act in finding that, so long as the appellants remained outside LTTE controlled areas if they were required to return to Sri Lanka, they would not be of interest to the LTTE for any reason - see finding (5) above. The second ground is that his Honour erred in failing to find that the Tribunal itself erred under s 476(1)(b) or (e) of the Act in finding that the Sri Lankan security forces can offer the appellants protection from the LTTE in Colombo - see finding (13) above. The third ground is that his Honour erred in failing to find that the Tribunal erred under s 476(1)(b), (c) or (e) of the Act in finding that the appellants could avoid persecution by relocating to Colombo - see finding (12) above. 18 The three grounds of appeal addressed what were described in submissions as the persecution finding, the effective protection finding and the relocation finding. It is accepted for the appellants that for them to succeed there must be a reviewable error in relation to the relocation finding or in relation to the persecution finding and the effective protection finding. Both the relocation finding and the persecution finding address a similar factual basis.

Evidence 19 On the hearing of the appeal and as a consequence of the absence of objection on behalf of the respondent, the Court received into evidence various supplementary documents being materials selected from among those before the Tribunal and in some circumstances referred to in its reasons.

Ground one: persecution finding 20 This ground is firstly particularised as involving a failure by the Tribunal to consider whether, as a result of the appellants' experiences in Switzerland involving the seeking of revenge by the LTTE member Muraleetharan, the appellants would be of interest to the LTTE in Colombo and have a well-founded fear of persecution on that basis. 21 This particular directed attention to findings (11) and (13) above. 22 In relation to finding (13) there are some features of it upon which the case for the appellants relies. The first is the reference to the words "after all these years". It is said that in the light of the fact that the appellants claim in relation to fear of revenge arose from recent events in 1996 and 1997, the use of this phrase suggested the Tribunal was not considering the issue. Secondly, it is said the finding showed the Tribunal's mind was directed to the pursuit or targeting of Tamils "for money or assistance" and does not include reference to reasons such as revenge. Thirdly, the reference to "ordinary Tamils" again shows the Tribunal was not averting to fear of revenge. Fourthly, it is said that when read in conjunction with finding (14), the Tribunal had found it not necessary to consider the claims of harassment and extortion in relation to Switzerland. 23 Most importantly, there was no claim before the Tribunal that the fears of revenge by Muraleetharan had any application outside Switzerland. Those fears are set out in pars C and D above. They were not directed explicitly or implicitly to anything happening in Sri Lanka. This is not a case where it could be said that the material before the Tribunal raised an issue on a basis not articulated by the appellants and which the Tribunal was required to consider: cf Paramananthan v Minister for Immigration & Multicultural Affairs (1998) 94 FCR 28 at 63 - 64; cf Minister for Immigration & Multicultural Affairs v Anthony Pillai (2001) 106 FCR 426 at 435 - 442. 24 Counsel for the appellants contended there were two sources of the claim made that Muraleetharan could seek revenge on the appellants in Sri Lanka. The first was the statement made by the first appellant set out above in par G above. In our view the passages relied on there do not support the contention. The second was the Tribunal's record of the second appellant's claim as set out in par F. We accept the submission for the respondent that this paragraph does not provide any link between the problems which the appellants had suffered from the LTTE in Switzerland and the problems which they claimed they may suffer from the LTTE in Sri Lanka. Consequently, neither of such passages raised such a claim on behalf of the appellants. 25 The second particularisation of the persecution ground is that in the course of finding that the appellants would not be of interest to the LTTE for any reason, the Tribunal relied upon CX32928 - see finding (13). However, it is said two findings were available from that and the Tribunal did not explain why it chose the one which it did. This is said to constitute jurisdictional error. 26 The relevant portion of CX32928 states: "We understand through reliable sources that the LTTE does extort money from some Tamils in Colombo, but this information is anecdotal. According to these sources, the LTTE might target some well-to-do Tamils in Colombo who had previously lived in the north and were known to the organisation. It is very unlikely that they would approach Tamils who have been living in Colombo for generations and have little or no contact with the North. It is equally unlikely the LTTE would knock on the ordinary Tamil person's door for such assistance." It is said that it is not clear why the Tribunal made the finding that the appellants were "ordinary Tamils" rather than "well-to-do Tamils". We consider that it was open for the Tribunal to classify the appellants in the way selected and in the sense in which the description applied to them was used in the document, especially if the appellants were not "well-to-do Tamils in Colombo" not having lived in Sri Lanka for over fifteen years. We do not detect any jurisdictional error in the way propounded for the appellants. 27 As the Tribunal made no error of law in rejecting these claims, it is unnecessary to further examine whether, if they had been, they had the requisite Convention connection: Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 at 242 and 263; Ram v Minister for Immigration & Ethnic Affairs (1995) 57 FCR 565 at 570.

Ground two: effective protection finding 28 The relevant finding appears as the last sentence of finding (13). 29 This ground was particularised by stating that the proper question which the Tribunal failed to consider was whether there is a real chance that state protection is not available. Error of law under s 476(1)(e) is claimed. 30 It is submitted for the appellants that in the present case the Tribunal did not refer to the real chance test save in an introductory paragraph. Therefore, it is said, this is not a case where the Tribunal had clearly shown that it understood the test was based on an assessment of a real chance of persecution: Minister for Immigration & Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 at 566 - 568; Minister for Immigration & Multicultural Affairs v Prathapan (1998) 86 FCR 95 at 101 - 106 and Ahmed v Minister for Immigration & Multicultural Affairs [2000] FCA 123. 31 In support of this it is submitted there are two reasons why this Court should not be satisfied that the Tribunal had correctly addressed the issues in that way. The first is that there was country information showing that the LTTE was known to have well trained spies to collect information in Colombo and engage in bomb attacks there. The second is that the Tribunal failed to consider the appellants' claims of fear of persecution from the LTTE for reasons of revenge and that this exemplifies its failure to properly understand and apply the real chance test in making its finding on effective protection. 32 We have already rejected the second argument brought to support the particularisation of this ground. In relation to the first argument, it was not the case that the Tribunal was required to address each piece of evidence: cf Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 at [73]. Furthermore, the particularised finding was a finding of fact made by the Tribunal based on country information and the primary judge would have been engaging in merits review to gainsay it.

Ground three: relocation finding 33 This ground is particularised as a failure by the Tribunal to consider the possibility that, even if the appellants relocated to Colombo, the LTTE can extort money from them or otherwise persecute them through their parents. It is said that this failure constitutes jurisdictional error under ss 476(1)(b), (c) or (e) or gives rise to reviewable error under s 476(1)(e) in relation to the improper application of the relocation principle: see Yusuf at [82]. 34 The finding of fact by the Tribunal in finding (13) was that the appellant parents or children, as long as they remained outside LTTE controlled areas in the North, would not be of interest of the LTTE "for any reason". The same words are used in the Tribunal's summary in finding (5) above. In the face of the usage of that expression it cannot be said the Tribunal had failed to take into account material relating to extortion and threats previously made to the first appellant's parents. 35 For the appellants it was nevertheless contended that it was not enough for the Tribunal to assert that it had taken into account every reason and that it is open to a court to find that not all reasons had been properly taken into account: Minister for Aboriginal & Torres Strait Islander Affairs v State of Western Australia (1996) 67 FCR 40 at 60 - 63. In that case, however, the court had before it evidence upon which the primary judge was able to conclude that there had not been the necessary consideration of the representations in relation to which the Minister had recorded that he had given consideration. That distinguishes this case. 36 The finding of the Tribunal in (11) is also relevant. Counsel for the appellants sought to distinguish it on the present issue saying that it should be read so as to be seen as focussing on the appellants' claims of persecution from the authorities rather than from the LTTE. Even if that approach is adopted the appellants' case is still faced with the finding in (13) and the related summary in finding (5).

Conclusion 37 For these reasons we consider that the grounds of appeal are not made out. Accordingly, the appeal should be dismissed with costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, RD Nicholson and North.

Associate: Dated: 10 April 2002 Pro Bono Counsel for the Appellants: Mr B Zipser

Counsel for the Respondent: Mr RJ Bromwich

Solicitor for the Respondent: Australian Government Solicitor

Date of Judgment: 15 April 2002

Migration Act 1958(Cth)ss 476(1)(b), 476(1)(c), 476(1)(e)

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