EX TEMPORE REASONS FOR JUDGMENT

HIS HONOUR:  I have before me an application for an order of review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 8 April 1998.  Thajudeen Abdul Careem (“the Applicant”) is a citizen of Sri Lanka and arrived in Australia on 26 May 1997.  On 2 June 1997 he lodged an application for a protection visa.  A delegate of the Minister refused the visa and the Tribunal affirmed the delegate's decision on 11 September 1997. 

The Applicant sought review of that decision by the Federal Court and on 22 January 1998 by consent the Court set aside the original decision and remitted the matter to the Tribunal to be determined according to the law by the Tribunal differently constituted.  The decision of the Tribunal of 8 April 1998 was a decision of the Tribunal differently constituted.

The Applicant is presently in detention.  The matter first came before me on 8 May 1998.  On that occasion I gave directions for affidavits to be filed together with written submissions.  The matter was listed for hearing on 17 July 1998.  On 10 July 1998 the Applicant wrote to the Court and to the Australian Government Solicitor indicating that he had withdrawn instructions from his previous lawyer and wanted to get a different lawyer.  He therefore asked for a period of one month to arrange a new lawyer and the money for the case.

On 17 July 1998 I gave directions for the Minister to file and serve affidavits and for the Applicant to file and serve any affidavit in reply.  I listed the matter for hearing today.  I also directed that the Minister notify the Applicant of the orders which I made on that day and to draw to the Applicant's attention that the matter had been listed for hearing today and that liberty had been reserved to the parties to apply.  There has been produced to the Court a copy of a facsimile communication addressed to the Applicant at the Villawood Detention Centre which clearly complies with the direction which I gave on 17 July.

The Applicant, however, has asserted from the bar table that he did not receive that facsimile communication.  He also says that he did not know until yesterday that the matter was fixed for hearing today.  That is advanced as the reason why he had made no arrangements for any legal advice.  The Minister has made some written submissions and this morning I afforded the Applicant the opportunity of having those submissions translated.  While the Applicant appears in person he has been assisted by an interpreter.  There does not appear to be any difficulty for the Applicant in understanding what is being said in court with the assistance of the interpreter.

Having read the submissions of the Minister, the Applicant sought an adjournment to enable him to make further written submissions with the assistance of legal advice.  I am not satisfied at the moment that the Applicant has taken care to look after his own interests.  However, rather than embark on an inquiry as to whether or not he did in fact receive the communication from the Australian Government Solicitor concerning the directions I gave on 17 July 1998, I propose to give reasons which have led me to the provisional conclusion that the application should be dismissed.  However, before making any order I will give the Applicant the opportunity of making written submissions in support of his application.

The application specifies two grounds under section 476 of the Migration Act 1958 (Cth) (“the Act”).  The first is that procedures required by the Act to be observed in connection with the making of the decision were not observed.  The second is that the decision involved an error of law being either an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found.  I shall deal with each of those separately but before doing so will say something about the reasons of the Tribunal published on 8 April 1998.

The findings of the Tribunal

The Applicant claimed that he travelled on a Sri Lankan passport in a false name.  However, he did not have the passport when he arrived in Australia by aircraft.  The airline booking was made in Dubai the day before he left Sri Lanka.  The Applicant variously described his ethnicity as Muslim, Sri Lankan, Tamil and Tamil-speaking Muslim.  The Tribunal found that he speaks Tamil as well as some English and Sinhala.  There was evidence from a birth certificate that the Applicant was born in the Mannar district which is on the west coast of Sri Lanka, 175 miles north of Colombo, although he claimed that he comes from the north east of Sri Lanka.

The reasons of the Tribunal summarise claims and evidence on behalf of the Applicant given in different circumstances.  The Tribunal also sets out information said to have been gleaned from independent sources concerning the state of affairs in Sri Lanka.  The reasons state that Muslims, though mainly Tamil speaking, do not regard themselves as Tamil.  They see themselves and are seen by others as Muslims, being their own separate ethnic group.  The reasons state that although there have been instances of Muslims co-operating with and even joining (“the LTTE”), the Tamil guerilla organisation, such instances have been extremely rare.

The Applicant apparently agreed at the hearing before the Tribunal that Muslims are a separate group with only the Tamil language in common with the general Tamil population.  He agreed that Muslims had good contact with the government in the past but said that now even Muslims are suspected of bringing bombs into Colombo.  The Tribunal apparently put to the Applicant that since 1994 there has been a great improvement in the human rights situation in Mannar and that there have been no reports of disappearances and very few cases of harassment.  The military presence is highly visible and people must obtain a security clearance to leave Mannar.  The Applicant agreed that a security clearance has always been required and that he never had problems getting a security pass because he was a businessman and Muslims have fewer problems in getting passes than others. 

The findings and reasons of the Tribunal for its decision may be summarised as follows.  The Tribunal accepted the difficulties of proof faced by Applicants for refugee status but that issues of credibility are relevant when determining an application for refugee status.  While the benefit of the doubt should be extended where appropriate, the decision maker is not required to accept uncritically any and all allegations made by an Applicant.  A liberal attitude concerning proof of persecution in the context of an application for refugee status should not however lead to an uncritical acceptance of any and all allegations made by suppliants. 

Despite the Applicant's various explanations, the Tribunal had grave doubts about the truthfulness of many of his claims.  That was because he did not tell the truth about being regarded by the terrorists as an army informer, or at the very least he exaggerated his claims considerably by stating, when interviewed on arrival in Australia, that the police were searching for him.

The Tribunal accepted that the Applicant may have been nervous and did not know what to say but considered that that did not explain why he could not have told the truth.  Such a lack of truthfulness suggested to the Tribunal that the Applicant thought that a true account of his claims would not get him into Australia.  The Tribunal considered that some of his evidence, which had developed over time, was entirely inconsistent or implausible.

The Tribunal accepted that the Applicant and his family were driven out of their home village in 1990 and lived in a refugee camp until 1992.  The Tribunal also accepted that the Applicant reopened the family business in 1992 and that he had travelled frequently to Colombo to purchase goods for the shop since 1985.  Further, the Tribunal accepted as plausible that the Applicant's goods and those of other traders were confiscated by the LTTE in October 1993.  The Tribunal also accepted as plausible that the LTTE asked him to transport a small quantity of goods from Colombo to Mannar in March 1995 and that he reluctantly did so. 

The Tribunal accepted that the Applicant may have been under some pressure from the LTTE after March 1995 to do another trip for them but found that if that pressure amounted to monthly requests, as the Applicant claimed at one point, he successfully resisted the pressure all year and has never been harmed as a result of resisting.  The Tribunal did not accept as plausible that such pressure resumed in 1996/97 or that it would resume if he returned to his village now or that he would be killed by the LTTE if he returned and refused to follow their orders.

The Tribunal did not accept the Applicant's claim that the LTTE is searching for him because he did not carry out orders, there being no evidence of that.  The Tribunal considered that there was no evidence to suggest that the Applicant was or would be targeted by the LTTE for a Convention reason.  On the contrary, it was the Applicant's consistent evidence that the LTTE was interested in people travelling and doing business between Mannar and Colombo because they could transport goods for the LTTE.  Such people were able to obtain permits for goods and travel relatively freely.

The Tribunal considered that the Applicant's Muslim family had not been singled out by the LTTE.  The Applicant's evidence about why he was approached by the LTTE suggested to the Tribunal that it was the Applicant's personal attributes, his business experience and his knowledge of the route that attracted the attention of the LTTE.  The Tribunal found that the LTTE had not targeted the Applicant because he was a Muslim or because of a political opinion imputed to him by his refusal to help but that his problem with the LTTE arose because of what he, as an individual, refused to continue doing for the LTTE and because they were angry with him for deceiving them or breaking a promise.

The Tribunal did not accept that the Applicant was detained for a week by the Navy in February or April 1994 as he asserted.  The Tribunal found that evidence implausible in that it had occurred at least four months after the Applicant's goods and other traders' goods were confiscated in public by the LTTE in October 1993.  The Tribunal found that the Applicant, being a Muslim trader, had never had any problem getting a security pass or permits for his goods from the authorities, whereas it is reasonable to expect that someone of serious interest to the authorities for supplying goods or in other ways supporting the LTTE would have considerable difficulties.  The Tribunal did not accept the Applicant's claim that if the authorities found out that he had transported goods to the LTTE he would be in trouble.

The Tribunal accepted that human rights abuses continue to occur in Colombo and that there are instances where police arrest people in order to extort money.  However, the Tribunal did not accept the Applicant's claims that he was detained twice in Colombo by the authorities or that if those claims were true that he was detained for a week on each occasion and tortured.  The Tribunal found it implausible that if the Applicant was detained and tortured in Colombo as claimed on suspicion of supporting the LTTE, he would have continued to obtain security clearances easily from the authorities in the Mannar area or to travel freely between Mannar to Colombo.

In the light of the independent information before the Tribunal that the victims of abuses by the Sri Lankan authorities are overwhelmingly Hindu Tamils, and the Applicant's implausible and inconsistent evidence about these matters, the Tribunal rejected his explanation and concluded that he was not detained and tortured for a week in August 1996 or April 1997.  Having rejected the Applicant's claims to have been arrested twice in Colombo, the Tribunal did not accept that the Applicant cannot return to Colombo because of prior arrests. 

The Tribunal further found that even if he was arrested in Colombo it was because he failed to register his presence as required by the laws of Sri Lanka.  The Tribunal considered that there was no evidence to suggest that the Applicant was detained or mistreated by the authorities for a Convention reason, such claims being inconsistent with the information before the Tribunal about the position of Muslims in Sri Lanka, including information that Muslims are not regarded as LTTE supporters and are not usually suspected of being so.  The Tribunal accepted that the Applicant may well be checked and questioned if he lived in Colombo.  However, that is the result of a law of general application.  Muslim Tamils as a group are not generally regarded as supporters of the LTTE and the Tribunal found that there is no real chance that the Applicant would be mistreated by the security forces for an imputed political opinion.  Having considered all the Applicant's claims and evidence the Tribunal was not satisfied that he has a well-founded fear of persecution by the Sri Lankan authorities within the meaning of the Convention.  Accordingly the Tribunal confirmed the decision under review. 

Grounds of review

I shall deal now with the grounds relied on by the Applicant in the light of those findings by the Tribunal.  The particulars of the first ground, which is based on section 476(1)(a) of the Act, are as follows:

In making the decision the RRT failed to act according to “substantial justice and the merits of the case” and/or failed to make findings on material questions of fact in that:

(1)       it failed to make findings in relation to, and/or address the substance of, that part of the Applicant's case for review which relied upon his fear of persecution, in particular detention, by the authorities in Colombo; and/or

(2)       it failed to make findings in relation to, and/or address the substance of that part of the Applicant's case for review which relied upon his fear of persecution by the LTTE on account of his being a trader in goods or a person who is perceived as being able to obtain goods.

Those contentions appear to me to be totally without foundation.  The reasons of the Tribunal do make specific findings in relation to and specifically address the contentions of the Applicant concerning his fear of persecution in Colombo and his fear of persecution by the LTTE.  The claims were set out in detail by the Tribunal in its reasons and the Tribunal also addressed relevant independent information relating to the state of affairs in Sri Lanka concerning the situation of Muslims in Sri Lanka and the situation of Tamils in Colombo.  The Tribunal, as I have indicated above, simply disbelieved the Applicant's claims because it found that the Applicant had not been truthful and, for reasons which are set out in some detail in the reasons, found his evidence inconsistent, implausible, and changing over time.

Adverse findings as to the Applicant's credit are matters within the province of the Tribunal and are not matters that are subject to review by this Court unless one of the specific grounds in section 476 of the Act can be made out.  While it may be a question of law as to whether the findings of fact were open on the evidence before the Tribunal, I have not been taken to any material which indicates that the findings of the Tribunal were inconsistent with the evidence or that there was no evidence to support the findings.

The Minister filed an affidavit to which there was exhibited a bundle of documents.  The first bundle comprises the file of the Tribunal, the decision of which is the subject of review.  The second bundle relates to the earlier file of the Tribunal and the third bundle consists of the file of the Department.  The Applicant said from the bar table that he did not receive those documents prior to the hearing.  The Applicant's solicitors had ceased to act for him but failed to notify the Australian Government Solicitor of that fact.  Accordingly, the matter has proceeded today on the basis that the only evidence before me is the reasons of the Tribunal.  If, in support of any further written submissions pursuant to the leave which I propose to give, the Applicant wishes to refer to the material which was exhibited to the affidavit of Ms Cheetham of 13 August 1998, I will admit that material as evidence before me.  However, in the absence of any such material, there is nothing before me to indicate that the findings made by the Tribunal were not supportable by the evidence before it.  Accordingly, I am satisfied that the first ground has not been made out. 

The second ground, based on section 476(1)(e), is particularised as follows:

The RRT either misinterpreted the definition of a refugee and/or misapplied the definition to the facts as found by it in that:

(i)        it erred in considering that arbitrary arrest and imprisonment are not persecution and/or to be ignored in considering whether the definition is satisfied if it can be terminated by the payment of a bribe;

(ii)       it erred in considering that the fact, if it be a fact, that the Applicant could avoid persecution if he ceased being a trader meant that he did not satisfy the definition;

(iii)      it did not consider that the definition required that consideration be given to the cumulative effect of the various fears of persecution held by an applicant for refugee status;

(iv)      it did not consider that the definition required that consideration be given to each separate aspect of a claim of fear of persecution made by an applicant for refugee status.

In the absence of any submissions in support of the particulars, it is difficult to deal with them otherwise than in general terms.  I do not consider that it is an error of law to find that an arrest which is the result of failure to comply with a lawful requirement, namely registration, could constitute persecution for a Convention-related reason. 

The second particular does not seem to be a finding made by the Tribunal.  I consider that on a fair reading of the Tribunal's decision, full and detailed consideration was given to the effects, both independently and cumulatively, of the various fears of persecution asserted by the Applicant.  Ultimately, however, the Applicant failed in his claim before the Tribunal because he was simply not believed as to the fears which he asserted.  On the material which I have seen thus far I do not consider that the second ground has been made out. 

Accordingly, in the absence of any further submissions I would be disposed to dismiss the application with costs.  However, for the reasons which I have previously indicated, I propose to stand over the hearing of the matter to 16 October 1998, on which day I will make orders as appropriate.  I give leave to the Applicant to file and serve no later than 9 October 1998 any written submissions which he wishes to make in support of his application.  I direct the minister to file and serve no later than 14 October 1998 any submissions which the Minister wishes to make in response to the written submissions of the Applicant.

Associate:

Dated:              25 September 1998