FEDERAL COURT OF AUSTRALIA

MIGRATION - Refugees - application for review of decision of Refugee Review Tribunal (“RRT”) - failure to address certain central claims made by applicant - failure to apprehend correctly nature of fear which applicant claimed to have - failure to observe procedures required by Migration Act 1958 (Cth) to be observed (cf s 476 1(a)), by failing to set out findings on material questions of fact (cf s 430 (1) (c)) and by failing to act according to substantial justice and merits of case (cf s 420 (2) (b)) - no question of general principle.

Migration Act 1958, ss 420 (2) (b), 430 (1) (c), 476 (1) (a)

MUTHIAH PILLAI SUNDARARAJ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 990 of 1997

LINDGREN J

SYDNEY

13 MAY 1998

THE COURT ORDERS THAT:

1.         The decision of the Refugee Review Tribunal dated 30 October 1997 be set aside and that the matter be remitted to that Tribunal to be determined according to law.

2.         The respondent pay the applicant’s costs of the proceeding.

Note:                Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

INTRODUCTION

The applicant applies under s 476 (1) of the Migration Act 1958 (“the Act”) for review by the Court of a decision of the Refugee Review Tribunal (“RRT”) dated 30 October 1997 affirming a decision of a delegate of the respondent (“the Minister”) not to grant the applicant a protection visa. Section 36 of the Act provides that a criterion for a protection visa is that the applicant for it is 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 of 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 a 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.”

The applicant’s case has been that he is outside the country of his nationality, Sri Lanka, and is unwilling to return to that country because of a well-founded fear of being persecuted for reasons of political opinion imputed to him by the authorities of that country.

PROCEDURAL BACKGROUND

The applicant arrived at Sydney Airport on 9 September 1997 without a passport or other identification papers. He claimed to have been born in Nuwara Eliya, Sri Lanka, on 15 August 1961, to be a citizen of that country and of no other country, and to be a Tamil. Since his arrival, he has been in immigration detention at the Immigration Detention Centre, Villawood.

On 12 September 1997 he applied for a protection visa. With the assistance of a migration agent, he made a four page typewritten statement on 19 September 1997 in support of his application. A delegate of the Minister refused the application on 25 September 1997. The next day, 26 September, the applicant applied to the RRT for review of that decision.

The AAT conducted a hearing on 22 October 1997, when the applicant was assisted by a legal adviser and an interpreter. As noted above, on 30 October 1997, the RRT affirmed the decision not to grant a protection visa. The applicant filed his application to this Court for review of the RRT’s decision on 26 November 1997.

REASONS FOR DECISION OF THE RRT

The RRT Member, in his Reasons for Decision, set out the “Decision Under Review”, the “Background” and the “Legislative Framework” in unexceptionable terms, followed then by the applicant’s “Claims and Evidence”, “Country Information” and the Member’s “Findings and Reasons”.  The applicant’s claims were expressed in the written statement referred to earlier and in oral evidence given at the hearing before the AAT. The following account is based, in substance, on his written statement.

Outline of Claims and Evidence

The applicant claimed to be a Tamil and to have been born in Nuwara Eliya, a hill town in the south of Sri Lanka, on 15 August 1961. It is useful to note the following extract from the first paragraph of the “Claims and Evidence” section of the Reasons for Decision:

“Nuwara Eliya is in the south of Sri Lanka and Tamils living there were brought to Sri Lanka in the 19th century by the British to work in the tea plantations. Information available to the Tribunal indicates that these Tamils have not been involved in the political struggles affecting Tamils in the north of the country. Tamils living in the north have occupied that territory for over a thousand years. There are linguistic and cultural differences between the two groups.”

In 1984 the applicant married a Tamil woman from Valvetthurai (“VVT”) near Jaffna in the north. Following the birth of the couple’s daughter in 1986, and intermittently after that time, the applicant’s wife’s relatives from the Jaffna region visited him at Nuwara Eliya. The visitors included his wife’s sister’s husband named Selvam from Jaffna.

The applicant claimed to have been detained and tortured on four occasions. The first was in 1989. At the time he was employed in a shop in Nuwara Eliya. He had many Tamil friends and a few Sinhalese friends. The latter were “radical people with no animosity against Tamils”. The Janatha Vimurthi Peramuna (“JVP”) is a pro-Sinhalese movement associated with a violent uprising between 1988 and 1990. There was severe fighting between the JVP and the Army in his area. Some of his Sinhalese friends were members of the JVP. Although the applicant did not personally support their cause, the Army suspected that he had close links with the JVP and arrested him and took him to the Diyatalawa Army camp. He was detained there for “6-7 months in 1989/1990”, questioned and tortured. The RRT’s reasons for Decision wrongly record the period as being of six days in November 1989. According to his statement, the applicant “escaped” after his father, who was a commission agent in Nuwara Eliya, paid a large sum of money through a friend of his to the commanding officer in charge of the “branch” where the applicant was detained.

In July 1991, the applicant’s wife went north to stay with her relatives to give birth to a second child. As a result of bombing and shelling in December 1991, the baby died twenty-four hours after birth and the applicant’s wife suffered mentally as a result. Commencing in 1992, Selvam, his friends and their friends began to visit the applicant’s house at Nuwara Eliya regularly. He was obliged to provide them with food and accommodation. They put pressure on him to join the Liberation Tigers of Tamal Eelam (“LTTE”) but he refused. However, from 1992 to 1995 he allowed these people to stay in his house. He did not know what their movements were or what they did when they were not actually in his house.  Those who stayed with him on the last occasion were called Chandran, Thilakan, Jegan, Jeevan and Rani. They stayed for fifteen days. The applicant did not know “whether they were from the LTTE intelligence unit or whether they were from the movement or whether they helped the movement”. Chandran, Thilakan and Jeevan often travelled to Colombo. Jegan and Rani often travelled to Kandy. The Member recorded that in answer to a question by him, the applicant could not explain why his neighbours did not question the presence of strangers from the north in his house. The Member remarked that Nuwara Eliya is a small town in the mountains and that it would be difficult for strangers to come and go without exciting the interest of neighbours, friends, traders and the police.

In October 1995, there was a bomb attack by the LTTE against oil tanks in Kolonnawa, Colombo. Police investigation revealed that the attacks had been led by the “Chandran” who had stayed with the applicant, and that the other four named persons who had stayed with him had also been actively involved in the attack. The applicant and the members of his household, that is, his wife, his child and his wife’s parents, were all arrested by the police. They were taken to the police station in Nuwara Eliya. The other members of the family were released but the applicant was, for a second time, detained and tortured. He was released after three days, again through the making of a substantial payment by his father through an intermediary, this time to the officer in charge of the police. In February 1996, however, the LTTE contacted him and blamed him for betraying them. His wife begged for his life and the LTTE spared him.

Towards the end of February 1996, the applicant was arrested by the Army. He was again taken to Diyatalawa Army camp. He was detained for three days and tortured. With the help of another person, his father contacted the officer in charge, paid over a large sum of money, and secured his release. The Army warned him that he would be closely watched and that if he helped the LTTE anywhere in the country, he would be “arrested and disposed of”.

The applicant fled his village of Nuwara Eliya and stayed with a friend in Kandy for some months. Next he went to Hatton and stayed with a friend, “Vijay”, who helped him reach Colombo.

At this point, the “Claims and Evidence” section of the Reasons for Decision deal with the applicant’s departure from Colombo International Airport by Air Lanka to Bangkok. However, the applicant’s written statement contained an account of intervening events not mentioned in the Reasons for Decision. He stated that his friend Vijay found a person named “Shakthi” who “was involved in sending people abroad secretly”. On the same day, the applicant went to his wife, collected her jewellery and some money from his parents, and told them that he was going to flee Sri Lanka. He then returned to Vijay’s place in Hatton. In August 1996 he went with Vijay to Colombo and met Shakthi who sent Vijay back and kept the applicant in a hotel.

I turn now to the fourth and last period of detention and torture. The applicant says that he was arrested by the Maradana Police, detained at the police station for one week, and severely beaten every night by two or three police officers who questioned him as to whether he was a member of the LTTE. He says that he was not given proper food and was made to starve. He says that after a week, Shakthi secured his release, took him to a house in Kandy, and told him to stay there until he arranged for the applicant’s travel documents. He said that since he was a stranger there, Sinhalese people in the neighbourhood suspected that he was “an LTTEer”, asked him many questions, harassed him and chased him from the area.

In December 1996 the applicant went to Vijay in Hatton, because his departure was being delayed. Vijay told him not to come again because he (Vijay) would be caused trouble. In response to the applicant’s begging to be allowed to stay, Vijay eventually provided him with accommodation in a small hut “in the rear of his estate”. Vijay suggested that the applicant grow a moustache and a beard to disguise himself. Vijay told Shakthi that the applicant was at Vijay’s place. Shakthi immediately came to Vijay’s place, took photographs of the applicant, and promised to obtain a passport for him. Later he affixed a photograph of the applicant on a different passport.

The applicant departed from Colombo International Airport by Air Lanka, accompanied by Shakthi, in March 1997. According to the applicant, they went to Cambodia via Bangkok, and Shakthi stayed with the applicant in Cambodia for fifteen to twenty days. Shakthi then took the applicant to Bangkok, where Shakthi took him from one house to another to conceal his whereabouts. In September 1997, the applicant flew from Bangkok to Sydney.

The applicant claimed to be worried about his wife and child and parents who, he felt, were all in danger. In his written statement, he said that he feared that if he were to return to Sri Lanka now, he would be at risk of death, torture and indefinite detention by the Sri Lankan authorities. He stated that some Tamils returning to Sri Lanka have been arrested at the Airport and disappeared. He claims that he has been tortured in the past at the hands of the security forces and the LTTE and that there is no guarantee that his life would be safe in Sri Lanka.

Findings and Reasons of the RRT

The section of the RRT’s Reasons for Decision headed “Findings and Reasons” is short. It is divisible into two sections, the latter being subdivided into two further sections. The first and lengthier part consists of the RRT’s reasons for rejecting the applicant’s evidence that he had left his wife, child and parents in Nurawa Eliya. The second part, comprising only two short paragraphs, constitutes a rejection of two specific planks in the applicant’s case.

It is interesting to read the first section together with the transcript of the relevant section of the hearing before the RRT. That transcript makes it clear that the Member did not believe the applicant’s evidence that having spent virtually his entire life in the hill town of Nurawa Eliya, he had not attempted to contact anyone there to ascertain the whereabouts of his wife, child and parents, about whom he said he was very worried. The Member questioned the applicant at length about this in a testing manner, and finally said:

“No car, no telephone, no friends, no relatives yet you did business in Nurawa Eliya!! Take a break for a few minutes. You [referring to the applicant’s legal adviser] have to talk to him. This is looking bad ... . This is too stupid ... . Now, he has to tell exactly what is going on. It’s too much to expect me to .....”

There was an adjournment of the hearing for ten minutes. On the resumption, the Member asked the applicant whether anything had occurred to him about Nurawa Eliya and as to why he was unable to contact anyone there to find out about his wife, child and parents. The applicant said:

“I have decided to come and tell you the whole truth. The fact is that I was worried that because whatever I was telling was going on tape. Due to some means, the information that I gave may get in the hands of the Sri Lankan arm [sic] forces, the authorities, or the LTTE. The fact of the matter is that my wife and child and my parents are now in India ... I have decided to ask for your forgiveness and tell you the whole truth.”

The applicant elaborated by saying that his wife, child and parents were in Trichinapoli (referred to as “Trichi”) in India. The Member put to him that he had come to Australia from India having found an agent in Madras, and that although he may have come via Bangkok or Singapore, his story that he had spent six months in Bangkok was also not true. The Member said:

“You have to tell me now, quickly, because I don’t believe this. I don’t believe this story about being in Bangkok for six months for one minute. I am not stupid and I have had too many cases to decide that story. It seems to me that your family is in Trichi and that’s where you were. That’s where you came from and that you flew probably to Bangkok, probably to Singapore, and then you came to Australia. The question then remains as to how your family got from Nurawa Eliya to Trichi.”

The applicant adhered to his evidence that he had spent six months in Bangkok. The Member told him that he did not accept that evidence because it did not make sense that he would not stay with his wife, child and parents while arranging his departure for Australia. The rejection of the applicant’s account in his statement of his journey from Colombo to Sydney was not attacked, and clearly could not have been successfully attacked, by the applicant.

I turn next to the second part of the “Findings and Reasons” section of the RRT’s Reasons for Decision. The Member rejected the applicant’s claim of detention and torture over a period of three days by the Police in December 1995, following the bombing by members of the LTTE of oil tanks at Kolonnawa, Colombo. The Member gave as his reason that if the Police had suspected the applicant of harbouring LTTE guerrillas, pleading and bribes would not have secured his release. The rejection of the applicant’s claim in the respect mentioned is not attacked, and could not have been successfully attacked, by the applicant.

The remaining matter dealt with has drawn criticism from the applicant and deserves to be set out in full. The Member observed:

“Information contained in DFAT cable CX21120 on the subject of Tamils living in the hill country of Sri Lanka stated that given the high levels of youth unemployment and poverty amongst Tamils the Sri Lankan government is concerned that the plantations ‘may’ become a recruiting ground for the LTTE. There is no evidence available to the Tribunal to suggest that the LTTE has had success in recruiting so called Hill Tamils into its organisation. The fact that the Sri Lankan government is concerned that plantations may become a recruiting ground suggests to the Tribunal that this has not yet happened. Given the country information available, the Tribunal does not believe that the applicant was a member or working on behalf of the LTTE.”

I note below the nature of the applicant’s submission in relation to this passage.

BRIEF OUTLINE OF PARTIES’ SUBMISSIONS

Outline of applicant’s submissions

The applicant submits that the RRT erred in three respects. First, he submits that it failed to address certain factual claims made by him, and that this constituted both a failure to observe procedures required by the Act to be observed, that is, the procedure of acting according to substantial justice and the merits of the case (see ss 476 (1) (a), 420 (2) (b)) and “an error of law” (s 476 (1) (e)). He also submits that the RRT failed to state its findings on material questions of fact as required by s 430 (1) (c) of the Act, and to apply the “real chance” test.

The second error of law relied on by the applicant is that the RRT erred in failing to appreciate that the applicant did not claim that he had a well-founded fear of being persecuted because he was a member or active supporter of the LTTE, but because the authorities perceived that he had assisted the LTTE or otherwise supported them, and hence that he would be persecuted on the basis of imputed political opinion. In support of this submission, the applicant relies on the passage towards the end of the Reasons for Decision set out above.

Third, the applicant submits that even if his claims of arrest and torture were not believed, there was sufficient material, having regard particularly to the findings made by the RRT as to the human rights situation in Sri Lanka, to find that there was a well-founded fear of persecution on the ground of race or political opinion or both. In this respect the RRT’s error was in “not weigh[ing] up what remained after its fact-finding process was complete.”

Outline of Minister’s submissions

The Minister submits that the RRT’s failure to address all the claims made by the applicant was not an appealable error, particularly in view of the fact that “[t]he Tribunal’s Reasons in the present matter leave the reader in no doubt that the applicant’s claim failed because he was not believed”. Counsel for the Minister submits that, given this finding on the applicant’s credibility and the fact that the claim that was addressed in the Reasons for Decision was the applicant’s main claim, it was not necessary for the RRT to make a specific finding on all those claims that were set out in the “Claims and Evidence” section of the Reasons for Decision. In relation to the claim that the applicant was arrested by the Maradana Police in late 1996, not mentioned in the AAT’s Reasons for Decision, the Minister submits that, given the RRT’s finding on credibility, there is no basis for suggesting that the RRT would have reached a different result if it had considered this claim.

In response to the applicant’s second submission, that is, that the RRT did not correctly identify the fear which the applicant claimed to have, the Minister submits that the RRT “implicitly rejected the applicant’s claim that he feared persecution on the basis of race and imputed political opinion”.

In response to the applicant’s third submission, the Minister says that, given the fact that the RRT did not find the applicant’s version of events credible, it was unnecessary to deal with the applicant’s individual assertions, either separately or cumulatively, and, therefore, that the RRT did not incorrectly apply the “real chance” test or fail to observe the requirements of s 420.

REASONING

I will deal, first, with the submission that the RRT failed to address some of the applicant’s claims. At the beginning of its Reasons, the RRT referred to the applicant’s claim “that he had been arrested on a number of occasions because of his race” and tortured whilst in detention. As noted earlier, in his written statement, the applicant referred to four instances of detention and torture. The first claim, that in 1989/1990 he was arrested, then detained and tortured for six to seven months by the Sri Lankan Army because of its suspicion that he had links to the JVP, was referred to by the RRT in its Reasons for Decision as a claim “that in November 1989 he was arrested and detained by the Army for a period of six days because of suspicion that he had links with the JVP” (emphasis supplied). This incident was not mentioned at all in the RRT’s “Findings and Reasons”.

The second claim, that of arrest by the Police in December 1995 followed by three days of detention and severe torture in the police station in Nuwara Eliya, was rejected as noted above.

The third claim, that in late February 1996 the applicant was again arrested by the Army and taken to the Diyatalawa Army Camp where he was detained and tortured for three days, was referred to by the RRT in the section “Claims and Evidence” but was not referred to at all in its “Findings and Reasons”. I do not think that the RRT’s rejection of the applicant’s account of his arrest, detention and torture by the Police in December 1995 can be understood to include a rejection of his account of his arrest, detention and torture by the Army in late February 1996. The former detention and torture were alleged to have been by the Police at the Police station in the town of Nuwara Eliya, while the latter detention and torture were alleged to have taken place at the Diyatalawa Army Camp.

The fourth and final claim, that of arrest by the Maradana Police followed by detention and torture at the police station for one week, is not mentioned in either the “Claims and Evidence” or “Findings and Reasons” section of the RRT’s Reasons for Decision. It may be that a passage referring to this incident is missing from the Reasons for Decision. The “Claims and Evidence” section refers to the applicant’s claim that he fled to Hatton and then to Colombo, but then proceeds immediately to refer to his allegation that he paid “the agent” a certain sum of money. There is no previous reference to any “agent”. It may be that a passage referring to the applicant’s introduction to Shakthi and his arrest by the Maradana Police was omitted from the Reasons for Decision.

In failing to address in its “Findings and Reasons” three of the applicant’s four claims of detention and torture, the RRT failed to address three of four important claims relevant to the central issue, whether the applicant had a well-founded fear of persecution for reasons of imputed political opinion.

I do not understand the RRT’s rejection of the applicant’s claim that he left his wife, child and parents in Nuwara Eliya and spent six months in Bangkok alone pending his departure for Australia, to constitute a rejection of all his evidence. The Member does not state in his “Findings and Reasons” section that he rejects the entirety of the applicant’s evidence. A reading of the transcript indicates that the Member knew that “other people [had] flown from Trichi to Bombay to Singapore to Australia” and that he took the view that it was highly likely that the applicant had been with his family in India and had not spent six months in Bangkok. Although it is not clear, the Member seems, implicitly, to have rejected the applicant’s evidence that his departure had been arranged in Colombo. But there was much more to the applicant’s story than the parts of it to which I have just referred, which do not go to the substantive issues raised by the Convention definition of “refugee”.

In sum, the Member addressed (and rejected) only one of the four claims of detention and torture central to the applicant’s case.

Finally, and perhaps most significantly, the Member misapprehended the nature of the fear claimed, and, therefore, did not address the question whether that fear was well founded. As Davies J said in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 at 313:

“The determination of the issue of ‘real chance’ requires, first of all, an identification of the fear and of the circumstances in which it arose.”

The applicant’s case was not that he feared persecution because of membership of the LTTE. Rather, he claimed to fear persecution because of his imputed political opinion arising from suspicion by the authorities that he sympathised with, and had supported by harbouring, members of the LTTE. The passage from the DFAT cable CX 21120 to which the Member referred in the passage set out

earlier, is:

“LTTE ACTIVITIES IN THE HILL COUNTRY WHERE THE ESTATE TAMIL POPULATION LIVES ARE OF CONCERN TO THE SECURITY FORCES.  TWO YEARS AGO, AUTHORITIES DISCOVERED A SYSTEM OF LTTE SAFEHOUSES IN THE AREA, WHICH THE LTTE WERE USING EN ROUTE TO COLOMBO.  GIVEN THE HIGH LEVELS OF YOUTH UNEMPLOYMENT AND POVERTY IN THE HILL COUNTRY, THE GOVERNMENT IS CONCERNED THAT THE PLANTATIONS MAY BECOME A RECRUITING GROUND FOR THE LTTE.”

That cable was sent in November 1996 and, accordingly, the “discovery” to which it refers was said to have been made about in November 1994.

The Member’s ultimate conclusion in the present respect was that he did not believe that the applicant “was a member or working on behalf of the LTTE”. It is not clear to me how this conclusion could be said to arise from the passage in the DFAT cable set out above, since it would be consistent with that passage that the applicant had been providing a safe house for members of the LTTE, and in this way “working on behalf of the LTTE”. But the more important point is that the applicant did not claim to fear persecution because he “was a member or working on behalf of the LTTE”. On the contrary, he claimed that he was not a member of the LTTE and had not worked on its behalf. His claim was that he had given accommodation to individuals who, it later transpired, had been members of the LTTE and had been working on its behalf. The applicant’s claim in this respect was that he feared persecution because of imputed, not actual, political opinion.

It suffices to say that in my view, the RRT did not observe two procedures which the Act required to be observed. They were the procedure of setting out the findings on certain material questions of fact as required by s 430 (1) (c) of the Act, and the procedure of acting according to “substantial justice and the merits of the case” mandated by s 420 (2) (b) of the Act. The material questions of fact were whether the applicant was detained and tortured on the other three occasions claimed and, if so, whether this signified that his fear of returning to Sri Lanka for reasons of imputed political opinion was well-founded. The “substantial justice and the merits of the case” also required the RRT to make findings on those questions of fact and, as well, to identify and appreciate the nature of the applicant’s fear correctly.

CONCLUSION

The decision of the RRT should be set aside and the matter should be remitted to the RRT for determination according to law.

Associate:

Dated:              13 May 1998