W168/00A v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|2001-05-10|Before: Prof J, Nicholson J, Katz JJ, Lee J

introduction 18 This is an appeal from a decision of a judge of this Court, given on 19 September 2000, dismissing the appellant's application for an order of review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 19 November 1999. By that decision the Tribunal affirmed a decision, made by a delegate of the respondent, to refuse to grant a protection visa to the appellant.

factual background 19 The appellant is a 28 year old male citizen of Sri Lanka, of Tamil ethnicity, from the Mannar district in the north-west of Sri Lanka where his family lives on a farm. On 3 April 1999 he arrived in Australia without any documents of identity. On 6 April 1999 he lodged his application for a protection visa with the Department of Immigration and Multicultural Affairs. 20 The appellant claimed that, if his application for a protection visa were refused and he were returned to Sri Lanka, he would be killed by the Sri Lankan Armed Forces ("SLAF") because they believed him to be a member of the Liberation Tigers of Tamil Eelam ("LTTE"). He claimed further that he, his younger brother and some friends had joined the LTTE and were given training. He did not fight for the LTTE, only doing manual work such as carrying supplies and, when necessary, corpses or wounded persons. He had sought to leave the LTTE, eventually being allowed to do so because his younger brother was in a higher position in its military wing. 21 The appellant claimed that he then went home and worked on the farm or garden. However, heavy fighting then commenced in his area and continued for three years. The SLAF continually advanced and retreated. He suffered an injury from a bombing in his home region. Members of the Eelam People's Revolutionary Liberation Front ("the EPRLF") came with the SLAF and searched his house, but he was in hiding. Subsequently he escaped to a cousin's house in another part of the district. He claimed that members of the EPRLF came looking for him. In that situation he accepted the offer from a friend, upon payment of a sum of money, to be taken to the airport and sent overseas. 22 The appellant claimed that because of his and his brother's involvement with the LTTE, he would be imputed with that organisation's political opinion, being one which is opposed to the Sri Lankan government. He maintained that any Tamil suspected of involvement with the LTTE or sympathising with the LTTE was at high risk of being killed, tortured or illegally and arbitrarily detained by the authorities without the possibility of a fair trial. Furthermore, the appellant claimed that even if he and his brother had not been involved with the LTTE, security forces persecute Tamils because of an adverse political opinion imputed to them merely because of their ethnicity.

the Tribunal's reasons 23 The Tribunal accepted that the appellant was of Tamil ethnicity, had come from the north-west of Sri Lanka and that there was ongoing fighting between the LTTE and the SLAF in that area. However, the Tribunal stated that there were inconsistencies between the appellant's evidence which had accompanied his application for a protection visa, the evidence given in his interview with the respondent's delegate and in his oral and written evidence submitted to the Tribunal, which undermined the credibility of his claims in general. 24 The Tribunal then said this (I have numbered the paragraphs for ease of reference later): "1. Given these and other details about the story, the Tribunal has serious reservations about the entire contents outlined. The Tribunal does not accept any of his explanations as plausible. The Tribunal accepts that there might be some elements of a story which are fabricated or exaggerated, and that it would be possible to accept the overall truthfulness of an event or events. In this particular case, however, the Tribunal does not consider that this is so, even after taking into account the applicant's limited education. Accordingly, as the Tribunal does not find his claimed reason for departing Sri Lanka to be credible the Tribunal does not accept any of the claims which flowed from his activities there. The Tribunal does not accept that the authorities are interested in the applicant on account of his actual or imputed LTTE profile. The Tribunal does not accept that the applicant faces persecution on the ground of a social group 'membership of his family' on account of his brother's alleged involvement with the LTTE. 2. Finally, the country information indicates that the applicant lived in an area that has been controlled by the army for sometime. It appears that Mannar has been under government/ army control from at least November 1996 although the reports indicate the LTTE still waged fierce fighting in the surrounding villages and jungle. In November 1996 the government announced that it would hold elections in the northern districts of Jaffna, Vavuniya and Mannar which in the then recent past, were under the control of Tamil separatists ('Sri Lanka cancels offensive' 1999, Jane's Defence Weekly, 22 September, (NEXIS). 'Sri Lankan Army claims fresh gains in Mannar', 1999, The Hindu, 13 June. (NEXIS) 'Tamil citizens in Mannar discouraged from travelling south, 1999, BBC Summary of World Broadcasts, 20 January, (NEXIS). The announcement of the elections was considered a major setback to the separatists as the calling of elections was likely to mean they would gradually lose control over the civilian population in the north ('Rebel chief vows to fight on as Lankan government slates polls,' Deutsche Presse-Agentur, 27 November, (NEXIS). In addition, Xinhua News Agency, 2 August 1999 reports "… over 3,000 civilians have sought refuge in the Mannar security zone in Sri Lanka's northwest and have been accommodated at the Pesalai refugee camp…. The refugees, who are receiving a better deal at the hands of the government, are now condemning the Tamil rebels for killing members of their own Tamil community...". The applicant's family have a farm inside this area and continue to live there. This farm is in close proximity to an army base and while the SLAF has been ruthless in attacking the LTTE and its known supporters, there is no evidence to support the view that it attacks all citizens. It is apparent that the applicant remained in the same location for a significant period, until shortly before his departure for overseas. There is no evidence that other family members have been harassed. In the circumstances, the Tribunal concludes that the authorities are aware that he resided in the local area but they have no adverse interest in him. 3. It is also consistent with his negotiation of security procedures between his home town and the airport and then through the airport. The Tribunal accepts that he had people to assist him, but it does not accept that he was able to pass through immigration and customs controls and board air planes with out (sic) passing through the relevant security and administrative procedures. It is plausible that his agent helped him through those procedures but the Tribunal is satisfied that the applicant must have been in possession of the appropriate documents and the fact remains that he was not once queried. 4. There is some information that returning Tamils could be questioned and even detained on return to Colombo. The Sri Lanka Monitor of February 1998, in an article entitled "Police evict 600 Tamils from Colombo lodges: Black Tiger in Slave Island" reported that: "… 190 Sri Lankans, including 178 Tamils, deported from Africa's Senegal were taken into custody on 25 February at Colombo airport. International refugee agency UNHCR says that police detention is to identify those with LTTE links, send a public message that there should be no attempt to leave Sri Lanka illegally and find the organisers of refugee moves. UNHCR confirms that all were released on bail under the Prevention of Terrorism Act and ordered to appears in courts in May." 5. An article in The Sunday Times of 7 June 1998, "Germany's bid to crack down on immigrants" [Cisnet CX31625], discusses the operations of the LTTE in Germany and notes that: "Sri Lankans who are repatriated when they return to Sri Lanka are usually questioned by Sri Lankan authorities according to Sri Lankan security regulations at the airport, as to where they come from and if they have any connections to the LTTE. After Sri Lankan authorities are satisfied they are released." 6. The Department of Foreign Affairs and Trade has referred to subsequent information regarding the treatment of returning Tamils (CX33705, September 1998) that indicates a person could be held for several hours until he can prove his identity by a relative or friend vouching for him. 7. In the context of the available information, it is possible that the applicant could be detained and questioned on arrival in Colombo, particularly if he is suspected of being connected with the LTTE or is seen as able to provide information about people smuggling. The Tribunal has already found that it does not accept his claims about his involvement with the LTTE. His family continue to live and operate a farm in this area without any apparent difficulty. He stated in his oral evidence to the Tribunal that his family own a big estate and only a small portion of the farm was sold to pay for his travel to Australia. He was able to pass through the security check en route to the airport, the immigration, customs and security controls at the airport and then leave the country without difficulty. Although the Tribunal did not accept the applicant's claims that he was an active LTTE supporter, I do not doubt that the Sri Lankan authorities would be aware of the assistance demanded by the LTTE of all residents in areas formerly under its control. His departure without any difficulty suggests he has used travel documents that raise no suspicions and it is likely that he can access those documents if he needs to return. If he cannot and if he is detained and interrogated at the airport on arrival, the Tribunal is satisfied that he would be released without any undue harm. At worst, he may be directed to return to give evidence about people smuggling, but that is neither persecution nor is it a response that is motivated by any of the reasons in the Convention. His absence from the country will not lead to suspicions he has been working for the LTTE as he has been in detention. He does not have a history of harassment by the authorities and his family is not without resources. 8. In all of the circumstances, the Tribunal is satisfied that the applicant does not face a real chance of persecution by the Sri Lankan airport authorities on account of his political opinion or race. Nor does he face a real chance of persecution by the SLAF or its allies in his home area, despite the fact that some fighting still goes on in that part of Sri Lanka. 9. In considering the applicant's claims and the information before it, the Tribunal finds that there is still an atmosphere of insecurity that pervades Sri Lanka, particularly in areas where there is ongoing fighting between the SLAF and the LTTE and in centres, such as Colombo, where there are terrorist attacks. However, there is not a real chance that the applicant faces persecution at the hands of either the Sri Lankan authorities and its agencies should he return to Sri Lanka. The Tribunal concludes that he does not have well-founded fears of persecution on account of his political opinions, his Tamil race or for any other Convention reason. It is not satisfied that he is a person to whom Australia has protection obligations under the Refugees Convention and Protocol and therefore he does not fulfil that criterion for the purpose of granting a protection visa."

grounds of appeal 25 There were four grounds listed in the Notice of Appeal. They were not happily drafted, being discursive and repetitious. They also overlapped each other. Fortunately, in paragraph 1 of a document entitled "Appellant's Argument", his counsel narrowed the issues for determination in the appeal. In that paragraph the appellant acknowledged that although his grounds of appeal were stated as four separate grounds, they all concerned what he described as a "single central issue". That issue was whether, either by error of law of a type referred to in s 476(1)(e) of the Migration Act 1958 (Cth) ("the Act"), or as a failure to observe procedures pursuant to s 476(1)(a), the Tribunal had failed to determine a material fact by reference to country information. The material fact was said to be whether the appellant would be at risk of persecution simply by reason of being a young Tamil male living in an area of continued conflict between the SLAF and the LTTE. 26 The appellant submitted that the Tribunal had not specifically dealt with the issue of likely future treatment by the Sri Lankan authorities of Tamil youths such as the appellant who resided in the north of Sri Lanka. Failure to address and make a finding of fact on such a central issue was, so it was put, a clear failure to comply with the requirements of s 430(1)(c). The appellant contended that it was "manifestly impossible" for the Tribunal to make any such assessment without reference to the country information. The submission was also put slightly differently i.e. that to make findings without reference either to the appellant's evidence or to the country information would be to make findings without evidence. The appellant submitted that the learned primary judge had erred in holding that the Tribunal had made a finding on that material fact. 27 Alternatively, the appellant contended that if the Tribunal had purported to address the issue and make a finding as to the future treatment of the appellant in the north of Sri Lanka, being a finding based on country information, it should have stated the evidence on which its findings were based. Its failure to do so was, so the appellant contended, a breach of s 430(1)(d) of the Act. The appellant submitted that the learned primary judge had also erred in failing to hold that the Tribunal had not stated the evidence on which its finding were based.

my reasoning 28 The first question, as I see it, is whether the Tribunal made a finding on the question whether the appellant was at risk of persecution simply by reason of being a young Tamil i.e. because of his ethnicity. 29 There was no dispute, quite rightly, from the respondent's side about whether this was a material question of fact within the meaning of s 430(1)(c). Rather, the respondent's submission was that the Tribunal had found that the appellant did not have a well-founded fear of persecution on account of either his political opinions, his Tamil race or for any other Convention reason. 30 In my opinion, the primary judge did not err in the manner complained of. He held that the Tribunal had made a finding that the appellant did not have well founded fears on account of his Tamil race. His Honour referred to this finding as being in the passage (in the paragraph numbered 9 of its reasons as set out above) in which the Tribunal expressed its conclusions. I think that the same finding was made in the immediately preceding paragraph. In that paragraph (paragraph numbered 8) the Tribunal considered whether the appellant faced a real chance of persecution by the Sri Lankan airport authorities on account of his political opinion or race and whether he faced a real chance of persecution in his home area. 31 It might have been better if, in the second sentence of paragraph numbered 8, the Tribunal had repeated the words "… on account of his political opinion or race" after the word "persecution". However, the Tribunal's reasons are to be read beneficially. I think that the Tribunal should be taken as having in those two sentences dealt with the matter of persecution by reason of political opinion and by reason of race. 32 In the third last sentence of paragraph numbered 2 above the Tribunal noted that it was apparent that the appellant had remained in the same location (in northern Sri Lanka) for a significant period, until shortly before his departure for overseas. In the third sentence of paragraph numbered 7 above it noted also that the appellant's family continued to live and operate a farm in the relevant area without any apparent difficulty. 33 The Tribunal was well aware of the appellant's Tamil ethnicity. Apart from the evidence which I have mentioned immediately above, the Tribunal referred (in paragraph numbered 7 above) to the appellant's ability to negotiate the security procedures between his home town and Colombo airport. It referred (in the unexpurgated version of paragraph numbered 2 above) to some country information about the relationship between the Sri Lankan government and Tamil refugees in the area in which the appellant lived. 34 Finally, where the Tribunal (in paragraph numbered 2) states "there is no evidence to support the view that it [SLAF] attacks all citizens", I think it can be taken to have used the expression "no evidence" in a non-technical sense. That is, in the sense of "no evidence which persuades me" - cf Gummow J in Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 479. Similarly the reference to "all citizens" in that context should be taken as meaning "all Tamils in that area, even though they are not 'known supporters' of the LTTE". 35 In essence, the appellant's complaint is, as the primary judge noted, that the Tribunal did not refer in greater detail to country information which supported a conclusion that there existed a real chance that all Tamils in the north-west of the country would be persecuted for reasons of race. Even if that were the case, this would not amount to reviewable error. The Tribunal was not obliged to give reasons for rejecting, or attaching no weight to, evidence or other material which might undermine any finding it made: Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 at [46]. 36 The Tribunal found, on the evidence to which I have referred above (and to which it referred), that the applicant did not face a real chance of persecution on account of his race, whether at Colombo or in the north-west where he lived. 37 The appellant is really seeking merits review of the Tribunal's decision. 38 In relation to the appellant's reliance on s 430(1)(d) of the Act, I think that it is sufficient to note that in paragraph numbered 2 above there were references to five separate items of country information and that in each of paragraphs numbered 4, 5 and 6 there was a reference to another such item of country information. When the Tribunal, in paragraph numbered 9 makes reference to "the information before it", it should be taken to have been referring at least to those eight separate items of country information. It may be, as Katz J observed in N258/00A v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 478 at par 43, that it is sufficient compliance with s 430(1)(d) for a decision-maker simply to list evidentiary material. In any event, in this matter it can be seen that the Tribunal did more than that. It set out a large part of the material from the sources to which it referred.

39 For the foregoing reasons, I would dismiss the appeal with costs. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Justice Carr.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

KATZ J: 40 I have had the opportunity of reading in draft the reasons for judgment of Carr J. 41 I adhere to the view which I expressed in N258/00A v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 478 at 489, [43], regarding the significance of the use in par 430(1)(d) of the Migration Act 1958 (Cth) of the words "refers to". 42 Apart from that matter, which, as Carr J has pointed out in his reasons for judgment (at [38]), is not determinative in the present case, I agree with his Honour's reasons for judgment. I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katz.

Solicitor for the Respondent: Australian Government Solicitor

Migration Act 1958(Cth)ss 65, 476(1)(a), 476(1)(e)

LEE J: 1 The appellant appeals from a judgment of a judge of this Court (R D Nicholson J) which dismissed the appellant's application for review of the decision of the Refugee Review Tribunal ("the Tribunal") that the appellant not be granted a protection visa under the Migration Act 1958 (Cth) ("the Act"). 2 The relevant facts in this appeal are set out in the joint reasons of Carr and Katz JJ. Those facts show it is appropriate that the appellant not be identified and his name replaced by a number in the title of the proceeding. 3 Counsel for the appellant submitted that the Tribunal, in determining whether it was satisfied, as required by s 65 of the Act, that the appellant held a well-founded fear that he would be persecuted if returned to Sri Lanka, failed to make a finding of fact on a question material to that decision. It was submitted that such an omission by the Tribunal provided ground for review of the Tribunal's decision under s 476(1)(a) or s 476(1)(e) of the Act and that his Honour erred in failing to order that the decision of the Tribunal be reviewed. 4 Counsel for the appellant submitted that the material finding of fact the Tribunal had failed to make was whether the appellant faced the risk of persecution by Sri Lankan authorities by reason of the fact that he was a young Tamil male. 5 Country information before the Tribunal recorded that young Tamil males in the north of Sri Lanka have been subjected to punitive action by Sri Lankan forces engaged in suppressing the Tamil insurgency in that region. The information supports claims that random detention, interrogation and torture of young Tamil males by Sri Lankan authorities is based on race and/or imputed political opinion. As a result other decisions of the Tribunal have accepted that young Tamil males from the north of Sri Lanka have a well-founded fear of persecution. 6 The Tribunal said it was possible that upon return to Sri Lanka the appellant would be "questioned on arrival in Colombo" but was satisfied that if the appellant were so detained and interrogated "he would be released without any undue harm". 7 Whilst accepting that the Tribunal had addressed whether the appellant would face persecution upon arrival at Colombo, counsel for the appellant submitted that the Tribunal did not determine the substance of the appellant's claim, namely, that as a young Tamil male there was a real risk that he would be harmed by Sri Lankan security forces if he were returned to Sri Lanka whilst Sri Lankan and Tamil forces remained in conflict. 8 The learned primary judge concluded that the reasons provided by the Tribunal explained why the Tribunal decided that the appellant faced no real risk of persecution if returned to Sri Lanka; had set out the findings made on material questions of fact; and had referred to the material from which such findings or inferences of fact had been made or drawn. His Honour was satisfied, therefore, that the Tribunal had complied with the requirements of s 430 of the Act. (See: Singh v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 469.) Accordingly, his Honour stated that no ground for review had been established under s 476(1)(a) or s 476(1)(e) of the Act. 9 This is a case in which, if the appellant's account is true, there is no doubt that his life is at risk if he is returned to Sri Lanka. The decision made by the Tribunal, that it was not satisfied that the appellant had a well-founded fear of persecution, turned on the following finding: "The Tribunal does not accept any of his explanations as plausible." On its face the appellant's account of his situation in Sri Lanka was not inherently unbelievable and in truth, rather than reject the appellant's claims for lack of connection with reality, the Tribunal determined that the appellant could not be believed as to his account of the grounds for his fear of persecution because "inconsistent" versions of that account had been provided when the appellant was interviewed by a delegate of the Minister and by the Tribunal. 10 An application for a protection visa is not determined by a judicial proceeding in which all relevant evidence is collected, presented and tested by parties to the proceeding. Determination of an application for a protection visa is an administrative function on limited material and limited inquiry, and the process does not provide a foundation on which a finding on credibility may be made with assurance. (See: S Kneebone, The Refugee Review Tribunal and the Assessment of Credibility: An Inquisitorial Role? (1998) 5 A J Admin L 78.) 11 In The Law of Refugee Status 1991 (pp 84-86) Professor Hathaway has explained why great caution is necessary before any claim to refugee status is determined on the credibility of the claimant: "First, the decision-maker must be sensitive to the fact that most refugees have lived experiences in their country of origin which give them good reason to distrust persons in authority. They may thus be less than forthright in their dealings with immigration and other officials, particularly soon after their arrival in an asylum state. The past practice of the Board of assessing credibility on the basis of the timeliness of the claim to refugee status, compliance with immigration laws, or the consistency of statements made on arrival with the testimony given at the hearing is thus highly suspect, and should be constrained in the contextually sensitive manner discussed previously in Chapter 2. Second, it is critical that a reasonable margin of appreciation be applied to any perceived flaws in the claimant's testimony. A claimant's credibility should not be impugned simply because of vagueness or inconsistencies in recounting peripheral details, since memory failures are experienced by many persons who have been the objects of persecution. Because an understandable anxiety affects most claimants compelled to recount painful facts in a formal and foreign environment, only significant concerns about the plausibility of allegations of direct relevance to the claim should be considered sufficient to counter the presumption that the sworn testimony of the applicant is to be accepted as true. …Ultimately, however, even clear evidence of a lack of candour does not necessarily negate a claimant's need for protection: "Even where the statement is material, and is not believed, a person may, nonetheless, be a refugee. 'Lies do not prove the converse.' Where a claimant is lying, and the lie is material to his case, the [determination authority] must, nonetheless, look at all of the evidence and arrive at a conclusion on the entire case. Indeed, an earlier lie which is openly admitted may, in some circumstances, be a factor to consider in support of credibility." Given the objective focus of the Convention definition, the purpose of eliciting evidence from the claimant herself is not to ascertain whether she harbours a subjective fear of return. Rather, it is to establish how circumstances in the homeland impact on her own security, and why she feels compelled to seek protection abroad." (footnotes omitted) 12 Having regard to the foregoing, it may be said that adverse decisions on credibility by the Tribunal should be restricted to the most obvious cases if the risk of injustice to applicants is to be avoided. In addition, as noted in Thevendram v Minister for Immigration and Multicultural Affairs [2000] FCA 1910 at par 26, there is the further risk that decision-makers may be tempted to seek to insulate their decisions from judicial review by disposing of all issues by adverse findings on credibility. 13 In the instant case, the warnings provided by Professor Hathaway appear to be particularly apt. The appellant speaks no English, and, indeed, is illiterate in his native language, Tamil. All interviews with the appellant were conducted through an interpreter. However, the findings of the Tribunal are not challenged and it must be assumed that the Tribunal exercised the degree of care required before it rejected the appellant's account for the reason that an answer given by the appellant in the course of an interview appeared to be "inconsistent" with a particular of that account. The question whether there was such an "inconsistency", or whether it was significant, was not an issue in the appeal. 14 With regard to the material issue that the appellant contends the Tribunal did not address, perhaps it may be said that the Tribunal dealt with the point impliedly. The Tribunal did not accept the appellant's claim that he had been involved with the Liberation Tigers of Tamil Eelam ("LTTE") and noted that the appellant had been able to live in northern Sri Lanka, in proximity to a Government army base, without the authorities taking any interest in him. The latter point, that no interest was shown in him, was contrary to the appellant's account but was, nonetheless, a finding made by the Tribunal. The foregoing conclusions carried the implication that the Tribunal was not satisfied that there was a real risk that Sri Lankan authorities would persecute the appellant as a young Tamil male from the north of Sri Lanka. It appeared to follow also that the Tribunal considered that no real risk of persecution by reason of race or imputed political opinion, could possibly arise by reason of Sri Lankan authorities forming an adverse view of the appellant as a young Tamil male from the north of Sri Lanka who had fled Sri Lanka to claim asylum in Australia. 15 In those circumstances, unless the appellant sought to show that the decision of the Tribunal was arbitrary or capricious, or not supported by logical grounds, (see: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 per Gummow J at [145] and [154]), the appellant could not demonstrate that the judgment of his Honour was affected by an error of law. 16 Another mind carrying out the function of the Tribunal, properly instructed, may have reached, quite readily, a conclusion contrary to that formed by the Tribunal but that, in itself, does not provide ground for review under the Act. 17 The appeal must be dismissed. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.

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