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[1999] FCA 1508
Federal Court of Australia
1998-12-21
Merkel JJ, Lindgren J
Original judgment source is linked above.
1 The applicants, Mr and Mrs Visvanathan, apply 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 Minister") not to grant them a protection visa. Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant be 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"). Article 1A(2) of the Convention provides that a refugee is any person who: "owing to well-founded fear of being persecuted for reasons for 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." 2 The applicants' case is that they are outside the country of their nationality, Sri Lanka, and are unwilling to return to it because of a well-founded fear of being persecuted for reasons of imputed political opinion.
PROCEDURAL BACKGROUND 3 The applicants arrived in Australia on 16 October 1996. On 23 December 1996, Mr Visvanathan lodged an application for a protection visa (visa sub-class 866). On the same date, Mrs Visvanathan lodged an "application for a member of the family unit" which accompanied Mr Visvanathan's application. A delegate of the Minister refused Mr Visvanathan's application on 30 July 1997. Consequently, Mrs Visvanathan's application also failed. On 15 August 1997, Mr Visvanathan lodged an application with the RRT for review of the decision. The RRT conducted a hearing on 4 February 1999. On 13 May 1999 the RRT affirmed the delegate's decision. Mr and Mrs Visvanathan filed their present application in this Court on 11 June 1999.
THE CLAIMS AND EVIDENCE BEFORE THE RRT 4 The RRT commenced its Reasons for Decision by examining the applicants' claims and evidence. It is convenient however to refer directly to the claims made by the Visvanathans in a statement dated 20 December 1996 which accompanied their visa applications. 5 Mr Visvanathan is a Sri Lankan Tamil who was born on 14 October 1931 at Kopay in Jaffna. He was employed in "the Co-operative Department". Since his retirement he has been engaged in farming at Manipay, which is also in the Jaffna region. He and his wife have six children. Two daughters and two sons live in Australia and a son and a daughter live in Germany. Another son is deceased. 6 Mr Visvanathan claimed that he and his wife had been living in fear for seven years down to the time when they came to Australia in October 1996, due to violent attacks by Tamil militants, the Liberation Tigers of Tamil Eelam ("LTTE"), the Indian Peacekeeping Force ("IPKF") and the Sri Lankan forces. (The reference here seems to be to "attacks" in general, not to attacks directed against the Visvanathans in particular). On several occasions, Mr and Mrs Visvanathan were forced to give significant amounts of money and gold to the Tamil terrorists. As a result they have been left with virtually no money or assets. 7 On or about 15 January 1988, three Tamil terrorists demanded of Mr and Mrs Visvanathan that one of their sons join their group. Mr and Mrs Visvanathan refused, saying that they had already given them all their belongings, that they were Christians, and that they were opposed to violence. As a result, the terrorists brutally "assaulted" them. 8 Mr and Mrs Visvanathan were disturbed by the manner in which they had been treated by the terrorists and Mr Visvanathan openly criticised them. The terrorists became aware of Mr Visvanathan's remarks and warned him to withdraw them and said that if he repeated them or criticised the terrorists' activities, he would be killed. 9 The terrorists then started harassing the Visvanathans and their sons. To escape, the Visvanathans sent their children to Colombo one by one. When the terrorists learnt this, they abused and "assaulted" them and called them traitors. In 1990, one son, Sheran, went to Switzerland. There he was harassed by the terrorists who killed him. 10 In May 1990 the terrorists demanded that Mr and Mrs Visvanathan pay them Rs 200,000.00 for having failed to give the movement one of their sons and for having sent their sons out of Sri Lanka. Mr Visvanathan was detained in the terrorists' camp pending payment. His children paid the terrorists Rs 100,000.00 and he was released. 11 In October 1995, the Sri Lankan forces launched an operation to capture Jaffna. They unleashed shelling and air attacks on Manipay. The Visvanathans were forced to leave and to seek refuge in Chavakachcheri. There they spent six difficult months (apparently from October 1995 to April 1996 approximately) in a Hindu temple which had been converted into a refugee camp. The Sri Lankan forces captured Jaffna town and brought it under their administration, leaving Chavakachcheri susceptible to army occupation. Against the orders of the terrorists, the Visvanathans returned to Manipay in April 1996, only to find their house had been flattened by the Sri Lankan forces. They "had no place to stay, nothing to eat and no clothes to dress". Mr Visvanathan fell ill and was unable to receive medical treatment. 12 On 15 May 1996, the Visvanathans left Manipay for Colombo where they arrived on 18 May. Two weeks later, two Tamil terrorists came to their house and demanded Rs 500,000.00. The Visvanathans had previously heard that the terrorists were collecting money and feared that if they refused, the terrorists would use force. They therefore agreed to pay Rs 200,000.00 in three weeks' time. They in fact paid this amount. 13 Mr and Mrs Visvanathan's statement recounted an incident involving their son, Roshan, and the husband of their niece, Sharmini. Sharmini's husband was called Mr Vijendra Naresh Rajadurai. Mr Rajadurai had been missing since 1995. Roshan, who was in Colombo at the time, helped Sharmini look for him. On 1 July 1995, a newspaper reported that five mutilated bodies had been found in the Aluwava river in Kurunegala. Roshan inspected the bodies but said that none of them resembled Mr Rajadurai. Indeed, he gave evidence before a magistrate to this effect. According to the Visvanathans, but for some reason not made entirely clear in the materials, the authorities were unhappy with Roshan's evidence. The Sri Lankan forces visited the Visvanathans' home several times "to get his statement". Roshan was also taken in for questioning and he fled the country on 11 August 1995. (He is one of the sons now living in Australia.) 14 Roshan's disappearance raised suspicion amongst the security forces who harassed the Visvanathans and took statements from them on three occasions. The security forces claimed that the Visvanathans were "Tigers". During this time, the Visvanathans were harassed by both the Army and the terrorists. The terrorists, who sometimes wore Army uniforms, came to collect the balance of the money they had previously demanded and the Army came in connection with Roshan's statement. The Visvanathans decided to flee the country. Having obtained Australian visas, they arrived in Australia on 16 October 1996. 15 Since arrival in Australia, the Visvanathans have remained in contact with their friends and relations in Sri Lanka, who have informed them that the Sri Lankan Army believes that they had been financing and harbouring terrorists in their house and therefore frequently checks their home. Mr and Mrs Visvanathan have been told that they will be "prosecuted" if they return to Sri Lanka. They have also been told that "the terrorists" are looking for them "to collect money." 16 At the hearing before the RRT on 4 February 1999, Mr Visvanathan was unwell and did not give evidence. Mrs Visvanathan did. According to the RRT's Reasons for Decision, Mrs Visvanathan produced certain documents to the RRT which lent support to certain aspects of the claims made and gave evidence to the following general effect. The son who had been killed in Switzerland had been having problems with the LTTE, and his friends had told the Visvanathan family that this was why he had been killed. No members of the family had in fact ever been involved with the LTTE and they were in fact opposed to the LTTE. Further, the family was Christian and Christians were not usually involved with the LTTE. 17 By 1989, all the Visvanathan children had left the Jaffna area for Colombo, and subsequently they all left for overseas. The LTTE, who at that time were in charge of the Jaffna area, prevented the Visvanathans from joining their children in Colombo and forced them to continue to pay over money to the LTTE. Mr Visvanathan was also forced to carry loads. 18 On returning to Jaffna from Chavakachcheri, Mrs Visvanathan and her husband did not experience any difficulties with the Sri Lankan Army, but the Army had control only of Jaffna town, not of Manipay where the Visvanathans were living, and so they still suffered hardship at the hands of the LTTE. In their absence, their house in Manipay had been severely damaged. As a result, the Visvanathans lived in a shed on the property. The LTTE had stored grenades there and had come later and taken them away. When the Army came the LTTE would hide and throw grenades at them. 19 Mrs Visvanathan repeated the account of the incident involving her son, Roshan, and the disappearance of her niece's husband. She claimed that a soldier, who had been a friend of her niece's husband, had been involved in his disappearance. 20 Mrs Visvanathan reiterated the claim that in Colombo the LTTE frequently demanded money from her and her husband, which they had paid out of fear. Mrs Visvanathan agreed that they were not targeted for political or religious reasons. 21 Mrs Visvanathan claimed that if they were to return to Sri Lanka, the LTTE would treat them as before. The Sri Lankan Army now controls the Jaffna area and Mrs Visvanathan did not foresee experiencing any difficulties with the Army, so long as the Colombo incident involving Roshan does not re-surface. She said that even in Colombo the LTTE would cause them problems because they had not allowed any of their children to join the LTTE and had left Jaffna secretly. 22 One of Mrs Visvanathan's daughters also gave evidence before the RRT. However, she had not been in Sri Lanka since 1984.
THE DECISION OF THE RRT 23 The RRT did not accept that in 1996 Mr and Mrs Visvanathan were harassed by the Sri Lankan authorities due to their son's, Roshan's, being suspected of having links with the LTTE or because he had refused to identify a body falsely in 1995. The RRT gave reasons for its non-acceptance of that part of the claims. The RRT did not believe Roshan had ever been of serious interest to the authorities and could not understand why they would want him to identify a body incorrectly. But even if this had been the case, the RRT noted that the authorities were free of Roshan from the time he left Sri Lanka for Australia. 24 The RRT doubted whether the members of the LTTE would put themselves at risk of exposure in demanding money from non-LTTE supporters, but in any event thought that if it had done so this would not have been for a Convention reason but because the LTTE believed they had money. 25 The RRT found that the Jaffna Peninsula is now under government control. It acknowledged that the LTTE continues to attack some districts in the Jaffna area, including, up until 1997, Manipay, however it noted that recent reports had shown no indication of Manipay's being the subject of such attacks. 26 The RRT further found that as the Jaffna Peninsula is now under government control, it was unlikely that Mr and Mrs Visvanathan would be subjected to the same demands from the LTTE that they had been exposed to before 1995, and that even if those demands were to be renewed, the Visvanathans had not been targeted in the past for a Convention reason, but had simply suffered a similar fate to that of most people living in an area under LTTE control. 27 The RRT concluded that Mr and Mrs Visvanathan did not face a real chance of persecution for a Convention reason.
THE PRESENT APPLICATION FOR REVIEW 28 On the hearing, Mr and Mrs Visvanathan relied on one ground of review: that provided for in s 476(1)(a) read with s 430 of the Act. The ground provided for in para (a) of s 476(1) is, relevantly, that procedures that were required by the Act to be observed in connection with the making of the decision were not observed. The particular procedure required by the Act to be observed on which reliance is placed is that laid down in s 430, namely, that the RRT must prepare a written statement that sets out its reasons for its decision and sets out its findings on any material questions of fact, and refers to the evidence or any other material on which the findings of fact were based. 29 Counsel for Mr and Mrs Visvanathan referred to the making of a particular claim by his clients and submits, in substance, that this claim was not addressed by the RRT, or, if it was, that the RRT's Reasons for Decision did not set out its reasons and findings or refer to the evidence in relation to that claim. 30 I will elaborate. The particular claim was undoubtedly made. In its most explicit form it was expressed as follows in the body of Mr Visvanathan's application for a visa: "Sri Lankan forces suspects [sic] us as [sic] harbouring, financing and supporting the terrorists." In less explicit form, the claim that the Sri Lankan forces suspected the Visvanathans of actively supporting the LTTE was made elsewhere. For example, in their joint statement to which I referred earlier, the following passage appears: " … The Sri Lankan army somehow came to know that we were harbouring the terrorists in our house and we were also financing them." (In context, "know" should be read as "believe," "suspect" or "think".) 31 Did the RRT address this claim? In its Reasons for Decision, there appears the following passage: " … even if I accept Mr Roshan Visvanathan's claims at face value, I find the claim that his parents were of interest to the authorities because the authorities were interested in him prior to his departure from Sri Lanka to be far-fetched and implausible and do not believe that they were repeatedly interrogated by the police about their son while they were in Colombo, nor that members of the security forces are looking for them because they are believed to be associated with the LTTE." (emphasis supplied) Immediately following this passage, the following occurs: "Mr and Mrs Visvanathan are an elderly couple; Mr Visvanathan is unwell. They are not members or supporters of the LTTE and never have been. They do not claim to have been suspected of LTTE involvement by the army or other Sri Lankan officials in their home area." 32 On its face, the passage which I have emphasised above suggests that the RRT did deal with the very claim in question. The passage is expressed in the present tense ("are looking" and "are believed") and the words, "associated with" are wide enough to include the notion of "harbouring, financing and supporting". No doubt, an expression more explicit than "associated with" could have been chosen showing that the form of "association" being addressed was that of "harbouring, financing and supporting", but I do not think that this alone indicates that there has been a failure to comply with s 430 of the Act. 33 Counsel for the Visvanathans, in his helpful submissions, says that the passage referred to did not address the claim about what had happened after his clients had left Sri Lanka, but I think that the use of the present tense indicates otherwise. He points out that the passage appears at the end of a larger passage that explains why the RRT did not accept that the Visvanathans had been harassed because of "the Roshan incident". He submits that given this context, it was that claim rather than the one of "harbouring, financing and supporting" which the RRT had in mind. I do not think that the context, fairly read, does limit the passage in the way suggested by counsel. It is true that the RRT, in much that preceded the passage in question, deals with the Roshan incident. But I do not think that this detracts from the words, "nor that members of the security forces are looking for them because they are believed to be associated with the LTTE". Indeed, the opening word "nor" suggests that the RRT is embarking on a subject different from that which precedes. 34 Counsel for Mr and Mrs Visvanathan also submits as follows: "… a belief by the authorities that the [a]pplicants had harboured or financially supported the LTTE had the potential to lead to far greater harm to the [a]pplicants than what they claimed had happened to them in the past. Yet the Tribunal did not address what the [a]pplicants claimed they were suspected of having done." 35 This submission refers to the claim that Mr and Mrs Visvanathan were suspected of having harboured terrorists in their house at Manipay and of financing them, and, in particular, that the house had been used to store grenades. The RRT's account of Mrs Visvanathan's evidence in this last respect is as follows: "The LTTE had stored grenades in their house and had come later and taken them away. She said that when the army came the LTTE would hide and throw grenades at them." 36 It is difficult to know what to make of this passage (there is no reason to doubt that it is a faithful reflection of the evidence). The first sentence suggests that the storing of grenades had ceased and was a "spent event" before the Visvanathans returned to Manipay in April 1996. According to this view, the second sentence could also be an account of what had happened in the past, that is, before, rather than after, the return of the Visvanathans to Manipay. Another construction is that Mrs Visvanathan's evidence of the throwing of grenades is not of a throwing of grenades from the Visvanathans' house at all but a generalised account of an LTTE activity which took place in the Manipay area. Of course, a third construction is that at the time when the Visvanathans were living in the shed, the LTTE were throwing the grenades from the house on their property and that it was only later that the LTTE took the grenades away. 37 It is true that the RRT does not explore this particular form of "suspected harbouring" in the decisive part of its reasoning. I do not think, however, that the absence of any discussion of this evidence constitutes a failure to observe the requirement of s 430. Counsel for the Visvanathans relies upon the Full Court judgment in Logenthiran v Minister for Immigration and Multicultural Affairs (Wilcox, Lindgren & Merkel JJ, 21 December 1998, unreported). In that case, however, the Full Court was dealing with egregious events (arrests and beatings) which had befallen the applicant on two occasions shortly before he left Sri Lanka, to which the RRT had referred in the "Claims and Evidence" section of its Reasons for Decision but not at all in the "Findings and Reasons" section. The relevant present evidence is of a much less direct and striking kind. It is not simply of the use of the house made by the LTTE. In substance, it is that friends and relatives understand that the Sri Lankan Army believes that Mr and Mrs Visvanathan were harbouring the LTTE in their house and will prosecute them for that reason. I do not think that in these circumstances the RRT's omission to address "the grenade evidence" in the reasoning section of its Reasons for Decision is in the same category as its omission in Logenthiran. 38 Counsel for the Minister refers to Mrs Visvanathan's evidence which the RRT recounted as follows: "I asked whether she thought she would have problems with the army in the Jaffna area. She said that she did not believe she would have any problems with the army unless something emerged relating to the incident in Colombo." 39 This is strong evidence against the proposition that Mrs Visvanathan feared retaliation from the Army in the Jaffna area, including Manipay, arising out of the LTTE's having stored grenades in, and thrown grenades from, the Visvanathans' house. 40 I think that the criticisms levelled at the Reasons for Decision in the present case are, with respect, of the kind referred to in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, 291 and Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 (FC) at 414 (Sackville J). The terms in which the RRT has expressed its Reasons for Decision are not to be over zealously scrutinised in pursuit of error (Wu)and the RRT is not required to produce reasons dealing with every matter raised before it and it is sufficient that it deal with the substantial issues (Muralidharan). 41 In the result, I do not think that the failure to comply with s 476(1)(a) is made out. 42 Before parting with this case, I think it appropriate to note that of the six living children of Mr and Mrs Visvanathan, four are in Australia and two are in Germany. Accordingly, they have no children remaining in Sri Lanka. The Visvanathans are an elderly couple. According to the application for the visa, Mr Visvananthan was born on 14 October 1931 and is therefore sixty-eight years old, while Mrs Visvananthan was born on 19 July 1933 and is therefore sixty-six years old. Mr Visvananthan, according to a medical report which was apparently relied on before the RRT to explain why he could not give evidence before it, is unwell, having had several hospitalisations, and "is quite disabled and breathless at rest." The report dated 28 January 1999 of Dr John C. Beattie, Consultant Physician in General Medicine, said of Mr Visvananthan: "He has chronic airflow limitation and has on a number of occasions been extremely unwell due to infection and been close to not surviving." 43 The claim of Mr and Mrs Visvananthan, on a humanitarian basis, to be able to see out their remaining years in Australia with four of their six children seems to be a strong one. 44 It is not, of course, the Court's role to make recommendations and if there is another category of visa appropriate in the particular circumstances in which Mr and Mrs Visvanathan now find themselves, no doubt advantage can be taken of it. But if, for some reason, this is not the case, perhaps the Minister could consider whether the case is an appropriate one in which his discretion under s 417(1) of the Act might be exercised in their favour.
CONCLUSION 45 The orders of the Court are as follows:
Solicitors for the Respondent: Australian Government Solicitor
Visvanathan
Minister for Immigration & Multicultural Affairs
(1996) 185 CLR 259
(1996) 62 FCR 402