Wimalaweera v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|1999-12-23|Before: Gyles J

REASONS FOR JUDGMENT 1 The applicant is a Singhalese Sri Lankan national who was born on 4 June 1967. He arrived in Australia on 4 January 1996, pursuant to a visitor's visa. On 8 July 1997 he applied for a protection visa. This application was refused by a delegate of the respondent on 26 March 1998. On 16 April 1998 the applicant sought review of that decision by the Refugee Review Tribunal ("the Tribunal"). On 31 May 1999 the Tribunal affirmed the decision not to grant a protection visa, not being satisfied that the applicant was a person to whom Australia had protection obligations and therefore not satisfying the criterion set out in s 36(2) of the Migration Act 1958 (Cth) ("the Act"). 2 On 28 June 1999 the applicant filed an application for an order of review. The grounds of the application were: "1. The Decision involved an error of law being either an incorrect interpretation of the applicable law and/or an incorrect application of the law to the facts as found by the Refugee Review Tribunal. Particulars The RRT either misinterpreted the definition of a refugee insofar as it only requires well founded fear of persecution and/or misapplied the definition to the facts as found by it and/or failed to act according to substantial justice and the merits of the case in deciding that: The RRT erred in applying the law to the facts as found in that it failed to consider whether the applicant had a well founded fear of persecution. 2. Procedures required by the Migration Act 1958 (Cth) to be observed in connection with the making of the decision were not observed. Particulars The RRT did not act according to "substantial justice and the merits of the case" in that it failed to properly consider the evidence in relation to the Applicant's claims and to clarify any apparent inconsistencies in those claims by questioning him at the RRT hearing." 3 When the matter came on for hearing on 22 November 1999, the applicant sought leave to amend the application by, effectively, substituting an application with new grounds. The Minister consented to the application and the amendment was made. The grounds of the application now are: "1. Procedures that were required by the Migration Act 1958 to be observed in connection with the making of the Tribunal decision were not observed (s 476(1)(a)). (a) breach of the obligation to provide reasons under s 430 of the Migration Act. Particulars (i) the Tribunal failed to make findings on material questions of fact being the claims of the applicant that (A) His brother was a Naval Commander. As part of his duties he interrogated LTTE suspects at the Naval bases of Silawatura and Talaimannar, he was later the Captain of a Navy vessel destroyed by the LTTE (the brother was killed) and the LTTE have targetted his family for annihalation/extermination. (B) That the applicant's father was a prominent member of the MEP and he publicly advocated the settling of Sinhala families in Jaffna. The father had also published a book denouncing the LTTE. The father also foiled an LTTE plot to bomb the parliament in Colombo. (C) That the LTTE had made a general threat against the supporters of the MEP. (D) That the police had twice (6 November 1997 and March 1998) attended their home with warrants for his arrest on charges of "rioting against the Government" under the "Prevention of Terrorism Act". (ii) The Tribunal failed to set out the evidence in support of its finding that the Sri Lankan Government could protect the applicant against attacks by the LTTE. (iii) The following reasoning of the RRT which was critical to its decision that Australia did not have protection obligations to the applicant was illogical: (A) that the Sri Lankan Government could protect the applicant against attacks by the LTTE. (B) that the applicant's claim of mistreatment should not be believed because the mistreatment which the applicant claimed to have suffered from the police was not warranted by his political activities. 2. The decision was not authorised by the Act [s 476(1)(c)]. PARTICULARS (a) in basing its finding that the applicant was not a person to whom Australia had protection obligations on illogical reasoning the RRT failed to properly form an opinion of satisfaction as required by the Act. (b) in not making findings on the material questions of fact set out in ground 1 above, the RRT did not consider the real question which it was its duty to consider. 3. The decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal. [s 476(1)(e)]. Particulars (a) in not making findings on the material questions of fact set out in ground 1 above, the RRT erred in failing to make the findings required by the relevant law. 4. The decision was based on a fact and there is no evidence that that fact existed s 476(1)(g). Particulars The RRT relied on the fact that the applicant's application for a visa to Australia was supported by a letter written by his brother before a rally held by the applicant in Kandy whereas the letter was written after that rally."

Basis for application 4 In his application for a protection visa, the applicant said: "I fear for my life at the hands of the L.T.T.E, JVP. without any protection from the government whatsoever." The reason for the harm he feared was on the following basis: "Due to my ethnicity, religion and political activities. The activities of my later brother who served as an officer in the Sri Lanka Navy and my elder brother's activities of Sri Lanka Navy. My father's and my political activities have created a situation in which I fear the liquidation of my entire family." 5 By the time of the Tribunal decision, the applicant was putting forward two bases for his fear of persecution should he return to Sri Lanka. The first related to his fear of persecution by the Liberation Tigers of Tamil Eelan ("LTTE"), and the second related to his fear of persecution by the incumbent government. His case was summarised in submissions before me as follows (omitting page references to the evidence): "2. The applicant's fear of the LTTE was in turn based on a number of factors: (a) His brother was a Naval Commander. As part of his duties he interrogated LTTE suspects at the Naval bases of Silawatura and Talaimannar, he was later the Captain of a Navy vessel destroyed by the LTTE (the brother was killed) and the LTTE have targetted his family for annihalation-extermination. (b) Another brother of the applicant served in the Special Naval Commando group, and his brother was instrumental in the capture of the deputy leader of the LTTE in 1981. After this capture leaflets were distributed by the LTTE stating that all Navy personnel involved in the capture would, together with their families face revenge. The applicant's brother is now the only surviving member of the platoon and has received threats from the LTTE. (c) The applicant is an anti separatist anti LTTE activist with the Mahajana Eksath Peramuna (MPA party) [sic; hereafter "MEP"] and has spoken against the LTTE in public as well as against the peace deal offered by the previous Sri Lanka Government to the LTTE. The LTTE have threatened to kill him because of this. (d) The applicant's father is a prominent member of the MEP and he publicly advocates the settling of Sinhala families in Jaffna. The father has also published a book denouncing the LTTE. The father also foiled an LTTE plot to bomb the parliament in Colombo. (e) The LTTE has made a general threat against the supporters of the MEP. (f) Tamil persons have been inquiring of the applicant's family as to the applicant's whereabouts and this is a well known LTTE precursor to an attack. 3. The Applicant's fear of the Government authorities was based upon a number of factors: (a) The applicant was a district leader in the Kandy district of the MEP. As such he conducted several meetings opposing the government. After this he received threats from the government that he would be disposed of. (b) The applicant made an anti government speech in the Bogambra grounds in Kandy on 4 November 1995. (c) The applicant was arrested at a checkpoint on 13 November 1995, taken by the police to an isolated house, stripped, bound and hung from the roof and beaten. Beatings continued on the following two days and he was released on either 23 or 24 November after paying a bribe. The applicant supplied a medical certificate in support of this. (d) The applicant has been informed by his mother that the police had twice (6 November 1997 and March 1998) attended their home with warrants for his arrest on charges of "rioting against the Government under the "Prevention of Terrorism" Act.

Tribunal decision 6 As to the fear of persecution by the LTTE, the Tribunal said (inter alia): "The Tribunal is not satisfied that the applicant would be persecuted by the Tamil members of the LTTE because of his anti-Tamil stance or because he is the brother of a person who was involved in the arrest of an LTTE activist. The situation at the present time is that the entire government security forces are targeting LTTE activists and suspected LTTE activists. The Tribunal does not accept, as a matter of fact, that the LTTE would target someone who merely spoke out against them when there are large numbers of troops and police who are actively persecuting, killing and torturing LTTE activists. If the LTTE targets anyone it would be those actively involved in this persecution. There is insufficient evidence to satisfy the Tribunal that the LTTE have any particular interest in the applicant. The Tribunal is not satisfied that the LTTE would find that the fact that someone is the brother of a member of the security forces who was involved in making a particular arrest would be sufficient reason to target that person. The relationship to a threat to their cause is in both cases - the speeches and activism and the relationship to the brother - too remote to warrant such action. In addition the history of the alleged harassment of the applicant by the LTTE, complaining of unknown persons asking about him, does not warrant a well-founded fear that he will be persecuted. In any case, the Tribunal also does not accept that the government of Sri Lanka would not be able to provide protection against such problems from the LTTE even if they were in fact true. The resources of the government are directed to a large degree against LTTE activism and the Tribunal finds that they would act effectively in order to prevent criminal action by the LTTE against the applicant, should it occur. … The Tribunal is not satisfied that the applicant would be a target of any mistreatment by the LTTE, whether for reasons of his activities, his relationship to his brother or any other reason. It is also not satisfied that the Sri Lankan government would not be able to provide protection if this were indeed the case. 7 In relation to fear of persecution by the government, the Tribunal said (inter alia): "The Tribunal is also not satisfied that the Sri Lankan police, the security forces in general, or any other agents of the government, would persecute the applicant for his political activities and speeches in favour of the MEP, nor for his activities in strongly criticising the government." … "In either case the Tribunal is not satisfied that the Sri Lankan government is today involved in targeting opposition figures. This is particularly so in relation to the applicant. The Tribunal finds that he is not a prominent anti-government figure, that his father has been a more prominent figure and not been taken into custody, and that the government would not be interested in targeting the applicant. For these reasons the Tribunal finds that the present Sri Lankan government would not target the applicant because of his political opinion or activities." … "The Tribunal finds that the Sri Lankan government would not be sufficiently concerned about outspoken criticism by a member of a minority opposition party to be motivated to persecute someone involved in this public criticism." … "The Tribunal, for the above reasons, is not satisfied that any of the claims of being beaten by the police which the applicant has made are true. Even if the applicant has at some time or other been beaten or taken into custody by the police or that if he was ever beaten the Tribunal is not satisfied that this was for reasons of his political activities. The Tribunal is not satisfied that his political activities would have warranted such treatment. In addition such treatment would be even more unlikely, not warranted at all, in the present situation where the MEP is a very minor party. The Tribunal is not satisfied that the applicant did in fact receive threats from government sources that he would be disposed of if he continued with his political activities, and even if this had taken place it would not indicate a serious threat in the current political climate. Likewise his reports of family receiving information of threats against him are not accepted to be based in fact by the Tribunal and even if they had taken place they do not represent a threat of a real chance of persecution in the current political climate." … "In summary, the Tribunal is not satisfied that the applicant has a political profile which would make him a target of any police or government action should he return to Sri Lanka. The Tribunal does not consider that if he returns to Sri Lanka and once again becomes strongly critical of the government he will be the subject of any mistreatment by the Sri Lankan police or agents of the government. Country information does not indicate that the current Sri Lankan government is disposed to treat opponents in this way, and the applicant, being a member of a minor party, would be allowed to be outspoken in his criticism without a real chance of being mistreated because of it." 8 The Tribunal concluded its findings as follows: "The Tribunal is therefore not satisfied that the applicant has a well founded fear of persecution for any Convention reason should he return to Sri Lanka." 9 These extracts from the decision of the Tribunal are not exhaustive as to the findings of fact made by it, but are adequate to understand the basis of the rejection of the applicant's claim.

Breach of s 476(1)(a) 10 The applicant submits that the Tribunal failed to make findings in respect of claims 2(a), (d) and (e) set out in paragraph 5 above and, in relation to claim (f), omitted the fact that the persons concerned were Tamil persons. The applicant further submits that no finding was made in relation to 3(d). 11 It was submitted that the Tribunal cited no evidence to support the finding of fact that the Sri Lankan government is able to provide the applicant with protection against any threat from the LTTE. It is submitted this was a breach of s 430(1)(d). It was submitted on behalf of the applicant that the failure to cite any evidence on this point was irrational and that the finding was, in any event, illogical in its own terms because it talks of preventing criminal action by the LTTE should it occur. 12 It was also submitted that the finding that the applicant's political activities would not have warranted the beating he claimed to have received, in particular because he was an activist for only a minor party, was illogical.

Section 476(1)(c) and s 476(1)(e) 13 No separate submissions were directed to these grounds.

Section 476(1)(g) 14 It was submitted that the Tribunal relied upon the fact that the applicant's application for a visa to Australia was supported by a letter written by his brother before a rally held by the applicant in Kandy, whereas the letter was written after that rally.

Respondent's arguments 15 In answer to the amended grounds of application, counsel for the respondent submitted that breach of s 430 of the Act does not give rise to a ground of review pursuant to s 476(1)(a), but did not elaborate upon the point in view of the then state of the authorities. 16 The balance of the respondent's arguments will be sufficiently covered when I deal with the applicant's case.

DECISION ON APPLICATION 17 At the time of argument, the question as to whether a breach of s 430 would enable review pursuant to s 476(1)(a) had been raised in, amongst other cases, Xu v Minister for Immigration & Multicultural Affairs, but judgment had been reserved. Since then, the decisions of the Full Court in Xu v Minister for Immigration & Multicultural Affairs [1999] FCA 1741 and Minister for Immigration & Multicultural Affairs v Yusuf [1999] FCA 1681 have been delivered. Each comes to a different conclusion. Not unnaturally, I prefer the reasoning in Xu (supra) and follow it in preference to Yusuf (supra) and the authorities to which it refers. I hold that the ground based upon breach of s 430 fails. 18 Lest that opinion not prevail, I shall consider the merits of the argument. At the commencement of its reasons, the Tribunal said: "The applicant's claims are set out in written submissions to the Department, an interview with an officer of the Department, written submissions to the Tribunal and oral evidence given to the Tribunal on Tuesday, 27 April 1999." 19 The documents which have been tendered on this application do not include any notes of the interview with the officer of the Department or any transcript of the oral evidence given to the Tribunal on Tuesday, 27 April 1999. Apart from the original reasons advanced by the applicant, the documents include a statement of the applicant forwarded via a migration agent on 21 August 1997 of some five pages, with voluminous supporting documents; a submission by the migration agent following the interview; a statutory declaration of the applicant following the interview; a further statement by the applicant provided to the Tribunal dated 23 April 1999, with supporting documents; and a further statutory declaration of the applicant of 17 May 1999 of some 16 paragraphs. In addition, the Tribunal refers to the receipt of voluminous articles, clippings and assorted documents after the oral evidence had been given by the applicant, some of which is reproduced in the documents tendered. In addition, there is the so-called "country information" which was provided to the Tribunal. 20 This mass of material was for the consideration of a specialist tribunal which stands in the shoes of the original decision-maker and so is to be "satisfied that"the criteria prescribed by the Act have been satisfied, including that provided by s 36(2) in the case of protection visas. The applicant had the task of satisfying the Tribunal that, inter alia, he had a well-founded fear of persecution for a Convention reason. 21 It is important to recognise the unusual nature of this applicant's claim to be a refugee. He is a member of the majority ethnic group in Sri Lanka. The government is dealing with insurrection in part of the country by some of a minority ethnic group. He is not from that part of the country. Furthermore, he claims vulnerability because of his activities in support of a legal and recognised political party, in a country in which there is a democratically elected government in good standing with Australia and the international community generally.

LTTE persecution 22 In order to make this claim good, the applicant had to satisfy the Tribunal that there was a real chance of his being targeted by the LTTE for attack if he returned. As is apparent from the portions of the Tribunal decision reproduced above, the Tribunal was not so satisfied, principally because the view was taken that a person in the position of the applicant would simply not be significant enough to be targeted by the LTTE. There is no doubt about the finding of the Tribunal on the fact which it regarded as material and the reason for it. The deficiency, if there be one, on that issue would not be breach of s 430(1)(b) or s 430(1)(c), but, rather, s 430(1)(d). In approaching that question, it must be borne in mind that s 430 relates to the giving of reasons, rather than to any aspect of the reasoning process. Indeed, s 476 does not permit of judicial review of the decision itself because it was arrived at by wrong fact-finding or illogical reasoning (Minister for Immigration & Multicultural Affairs v Epeabaka (1999) 84 FCR 411). 23 As Branson J has recently pointed out (Rajaratnam v Minister for Immigration & Multicultural Affairs [1999] FCA 1707, para 26), s 430(1)(d) requires that the statement "refer to" the evidence or other material upon which a finding of fact is based rather than setting out that evidence. 24 The complaint which the applicant makes is, upon analysis, that the Tribunal did not, in its reasons, set out fully all of the evidence and other material upon which the applicant relied. The sub-section does not require this to be done. The obligation under s 430(1)(d) is not to refer to the evidence or any other material upon which the applicant relies, rather it is to refer to that evidence or any other material on which the relevant finding of material fact is actually based by the Tribunal (Addo v Minister for Immigration & Multicultural Affairs [1999] FCA 940; Sivaram v Minister for Immigration & Multicultural Affairs [1999] FCA 1740). Provided that findings upon the material facts are set out as required by par (c), reasons are set out as required by par (b) and the actual evidence and other material upon which the findings are based is referred to as required by par (d), the requirements of the sub-section are satisfied. The result will be that an applicant will know how the Tribunal has arrived at its decision. This may reveal error sufficient to found judicial review of the decision either in this Court or in the High Court, or may provide a basis for making representations at a political or public level. 25 Take the present criticisms. It may be that the written statement of the Tribunal reveals that, when the Tribunal was considering the issue of fear of persecution by the LTTE, it did not have in mind the separate activities of the two brothers of the applicant, and did not have in mind the activities of the father of the applicant in relation to the MEP. If so, the merits of the decision can be criticised. However, failure to advert to those matters is not a breach of s 430(1). They were neither material facts which required a finding nor evidence upon which the Tribunal findings were based. 26 Even if this analysis is not correct, and materiality is established by the claims made by an applicant, this applicant has the difficulty that he has not tendered the transcript of the oral hearing or the notes of interview with the departmental representative, which was material which the Tribunal properly took into account. Merely being able to point to some documents in which the relevant claim is made does not establish that that was truly the case which was made by the applicant to the Tribunal. 27 This is not a case in which the applicant submits that there was cogent independent evidence that, for example, Singhalese MEP activists or those with family members who had been involved in hostilities against the LTTE had been subject to what might be classed as persecution whilst in those parts of Sri Lanka in which the applicant would reside if he returned. The Tribunal was simply not satisfied that there was evidence or other material to establish that a person with the characteristics, history and family associations of the applicant would be the subject of persecution by the LTTE. It is for the applicant to satisfy the Tribunal of the relevant potentiality for persecution. Assertion by the applicant does not amount to evidence or other material in support of this proposition. The applicant's allegation that unknown Tamils had come to his house asking where he and his brother were, was, contrary to the argument for the applicant, expressly referred to in the "Findings and Reasons" portion of the Tribunal's reasons for decision and is plainly picked up when the Tribunal said: "… the history of the alleged harassment of the applicant by the LTTE, complaining of unknown persons asking about him, does not warrant a well-founded fear that he will be persecuted." Thus, the Tribunal refers to that evidence. The complaint by the applicant is, in my opinion, about the merits of the reasoning of the Tribunal as to that evidence, rather than any breach of s 430. 28 In any event, counsel for the respondent submits that, even if there were a breach of s 430(1) in the respects alleged, it would not lead to any relief as the Tribunal did not accept that the government of Sri Lanka would not be able to provide protection against the alleged threat from the LTTE. It is essential to the case of the applicant that the Tribunal be satisfied that Sri Lanka is unable or unwilling to prevent the persecution which is feared (Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225, per Brennan CJ at 233, McHugh J at 258; Abdi v Minister for Immigration & Multicultural Affairs [1999] FCA 1253, paras 24-26). Therefore, the failure to so satisfy the Tribunal is fatal to an attack upon the decision in relation to the fear of persecution by the LTTE. Any deficiencies there may be in the Tribunal's statement in relation to that aspect of the case are quite immaterial. 29 The applicant claims, however, that the Tribunal failed to set out the evidence in support of its finding that the Sri Lankan government could protect the applicant against attacks by the LTTE. In the first place, as I have pointed out, the obligation is to "refer to" evidence rather than set it out. The ground also misstates the principal Tribunal finding. The Tribunal does not accept (and, so, is not satisfied): "… that the government of Sri Lanka would not be able to provide protection against such problems from the LTTE even if they were in fact true." The difference is important in considering the obligations imposed by s 430(1). A positive finding would normally be based upon evidence or other material. A negative finding may or may not be based upon evidence or other material. It may simply be based upon absence of evidence or other material to support a positive proposition which the applicant advances. It seems to me that the latter is the correct description of the present situation. 30 Reading the reasons of the Tribunal in a sensible fashion, it seems to me that the finding concerning effective government action is the corollary of the failure by the Tribunal to accept that the government of Sri Lanka would not, or could not, provide protection to a citizen, particularly where it finds that the resources of the government are directed against LTTE activism. The Tribunal had already referred to the fact that the entire government security forces were targeting LTTE activists and suspected LTTE activists. This, in my opinion, is a sufficient reference to the evidence and material which supports the conclusion of the Tribunal as to the material fact of government protection (Rajaratnam (supra)). The merits of the Tribunal's conclusion are not relevant to a breach of s 430(1). 31 The other attack which is made upon this finding is that it was illogical. In support of this proposition, it was argued that the statement "the Tribunal finds that they [the government] would act effectively in order to prevent criminal action by the LTTE against the applicant, should it occur" was internally inconsistent because it refers both to the prevention of and the occurrence of criminal action. In my view, this is a very good example of the hypercritical examination of reasons of the Tribunal which was deprecated in, amongst many other cases, Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2. It is perfectly obvious that what the Tribunal meant was that the government would act effectively in order to prevent harm to the applicant in the event of criminal action by the LTTE aimed at the applicant. In any event, illogical reasoning is not a breach of s 430(1). 32 The foregoing makes it unnecessary to consider whether, in any event, any persecution of the applicant by the LTTE would be for a Convention reason. 33 The appeals to s 476(1)(c) and s 476(1)(e) are without substance.

Government persecution 34 The amended application refers to this issue in ground 1, particulars (i)(D) and (iii)(B), and ground 4. 35 Ground 1(i)(D) falls at the first hurdle because, in my opinion, the Tribunal did make the relevant finding when it said: "Likewise his reports of family receiving information of threats against him are not accepted to be based in fact by the Tribunal …" This is apt to describe the allegations in the statement of 23 April 1999 which are said to have been omitted. 36 I also observe that this statement was made prior to the oral evidence of the applicant. In those circumstances, the applicant cannot establish the precise basis upon which the matter was left with the Tribunal. 37 I should also say that the finding that the Tribunal was not satisfied that the police, the security forces or other agents of government would persecute the applicant for his political activities and speeches in favour of the MEP, nor for his activities criticising the government, would make failure to refer to a particular piece of evidence immaterial. The Tribunal refers to a significant body of material upon which it based that finding. It is a finding which, par excellence, is within the province of the Tribunal. It is not attacked. 38 Ground 1(iii)(B) is misconceived. Illogical reasoning is not a breach of s 430. 39 The applicant submits in ground 4 that the Tribunal made a factual error as to the date of the rally. It is submitted that the Tribunal found that the date of the rally was after 8 November 1995, whereas in its recital of "Claims and Evidence" the Tribunal referred to the fact that it was claimed to have been held in April 1995. The portion of the Tribunal's reasons in question is as follows: "The applicant claims that a major reason of his fear and decision to leave the country was because of incidents arising out of his organisation of a rally in Kandy. He claimed in his interview with the Department that he decided after being beaten by the police that he should leave the country. His attention was drawn to the fact that a letter written by his brother in support of his application for a visa to Australia was written on 8 November 1995, before the Kandy rally and the police detention. He then stated that around mid October his father had suggested he should go to Australia, where his brother and sister were, and to give up politics. The applicant claimed in his interview that the police had come searching for him on Dec 1 or 2, 1995, and that as he feared for his life he went into hiding and left the country. The Tribunal finds that it is too convenient an explanation that the applicant had already begun the processes to travel to Australia when these large events which drove him to leave hurriedly for Australia took place." This has to be understood in the light of the claim by the applicant that his opposition to the government had led to his arrest and torture on a number of occasions, which was the immediate cause for his fear of persecution. Those incidents were said to have taken place between about 12 November 1995 and 20 November 1995, albeit they were connected, so he claimed, with his organisation of the earlier rally. The point being made by the Tribunal is that before any of these alleged incidents the applicant's brother had written a letter in support of an application for a visa. That point is unaffected by any error as to the date of the rally, if it was an error. This kind of error is not sufficient to invoke s 476(1)(g).

CONCLUSION 40 The applicant has not established any proper basis for judicial review. The application is dismissed with costs.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Solicitor for the Respondent: Australian Government Solicitor

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