FEDERAL COURT OF AUSTRALIA

Fernando v Minister for Immigration & Multicultural Affairs

[1999] FCA 380

IMMIGRATION – refugee application – review of decision of Refugee Review Tribunal – claim of well-founded fear of persecution on basis of being victims of terrorism – alternatively on basis of governmental persecution due to association with former opposition party – Tribunal disbelieved applicants – whether error of law.

Migration Act 1958 (Cth), s 476

Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 referred to

Jairo Londono-Castaneda v Minister for Immigration and Multicultural Affairs [1999] FCA 230 referred to

Kopalapillia v Minister for Immigration and Multicultural Affairs [1998] FCA 1126 referred to

SUDESH PRIYANGA KAHAPOLA ARACHCHIGE FERNANDO and MANOH THARANGA KAHAPOLA ARACHCHIGE FERNANDO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

WAG 124 of 1998

CARR J

PERTH

23 MARCH 1999

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicants pay the respondent’s costs.

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

REASONS FOR JUDGMENT

Introduction

1                     This is an application for an order of review of a decision, on 22 July 1998,by the Refugee Review Tribunal (“the Tribunal”) to affirm the decision of a delegate of the respondent not to grant to the applicants a protection visa under the Migration Act 1958 (Cth) (“the Act”).  The applicants are twin brothers who made identical claims which were the subject of the one decision by the Tribunal.

2                     It was necessary for the applicants to satisfy the respondent that they were persons to whom Australia had 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 (“the Convention”).  In particular, it was necessary for each applicant to satisfy the respondent under Article 1A(2) of the Convention that he was a 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 fear, is unwilling to avail [himself[ of the protection of that country;…”

Factual Background and the Tribunal’s Reasoning

3                     The following statement of the factual background has been taken largely from the reasons of the Tribunal.

4                     The applicants were born on 4 November 1974 in Sri Lanka.  They are of Sinhalese ethnicity and Buddhist religion.  The first-named applicant, whom I shall call “Sudesh”, without thereby intending any disrespect whatsoever, arrived in Australia on 7 February 1996.  His brother who I shall call “Manoh” (on the same basis) arrived in Australia on 30 June 1996.  They both applied for protection visas on 30 June 1997.  According to their application forms, they lived at the same address in Moratuwa, a suburb of Colombo, until their departure from that country.  Sudesh completed his schooling in 1993 and worked as a marketing executive for an insurance company in Colombo from 1993 until February 1996.  Manoh finished school in 1991, after which he worked as a steward in two different restaurants in Colombo until May 1996.  Neither brothers made any claims under the Convention in their initial applications.  They both indicated that they would provide more information at an oral hearing.  Despite this, neither was interviewed, nor were they advised that a decision was to be made without an interview.  Sudesh’s application was refused on 17 July 1997; Manoh’s application was refused on 22 July 1997.

5                     On 14 August 1997, the applicants applied to the Tribunal for review of those decisions.  At that time the applicants provided a written submission stating that their father owned a timber business which took timber from the jungles in the Vanni region of the North Central Province of Sri Lanka.  They said that guerillas belonging to the Liberation Tigers of Tamil Eelam (“LTTE”) were also present in those areas and that some years previously their father’s business partner and others had been abducted from a lumber camp in Welinkanda area in Polonnaruwa District.  On 4 September 1997 the applicants’ migration agent (who is also a barrister and solicitor) provided a written submission which, in summary stated that:

·          the applicants’ father’s business partner was abducted and disappeared in July 1988, after which the family received threats from the LTTE;

·          in 1992 the applicants began helping their father in his business, which was in decline because of threats and harassment from the LTTE;

·          in January 1993 when they were visiting Welinkanda with their father they were stopped by the LTTE, who took their money.  However, their father was able to hoodwink those people and escape with the applicants.  This incident was immediately reported to the local army;

·          after this the LTTE made more serious threats against the family and the Sri Lankan authorities refused to protect them;

·          fearing that his sons would be abducted or killed, Mr Fernando senior sent them to live in Moratuwa, while he continued with the family business. However, in the face of continued ransom demands and threats from the LTTE, he was ultimately forced to give up the business;

·          the family continued to receive death threats from the LTTE and in 1996 the applicants decided to seek safety in Australia.

6                     The applicants also provided to the Tribunal some documentary material which was as follows.  First, a copy of an extract from the Polonnaruwa police information book headed “Appeal for Security”.  That document was dated 10 January 1992 and stated that Mr Fernando senior, the applicants and some of their workmen, while working in the Welinkanda area, had been intimidated by the LTTE who had threatened them with extortion.  Mr Fernando senior had been forced to send his sons to Moratuwa and to abandon his business because of those problems.  A stamp at the bottom of the statement appeared to indicate that a copy of the document had been obtained on 30 July 1997.  Next was a copy of an affidavit from Mr Fernando senior dated 22 July 1997 which asked that his sons be granted a protection visa “on humanitarian grounds”.  There was also a copy of an undated letter, apparently from the President of Sri Lanka, addressed to Mr Fernando senior which indicated that Mr Fernando senior had written to the President on 14 February 1998 asking that he (the President) provide protection for himself and his sons.  The President replied in his letter that he could not personally provide this protection, but he had passed the request along to the Ministry of Defence for “quick action and report”. 

7                     At the hearing, the applicants told the Tribunal that their main reason for fearing to return to Sri Lanka was that they would be at risk of harm from the LTTE, but they added that they had also had problems because of their own and their father’s involvement with the United National Party (“UNP”).  In relation to their problems with the LTTE, Sudesh told the Tribunal that the LTTE had targeted his family because they wanted to stop his father cutting timber in the area where the LTTE was operating, because the LTTE also cut that timber to earn money.  Their father had often seen LTTE members in the jungle, so he knew where they hid and where they kept arms and ammunition.  The LTTE were afraid that he would give this information to the authorities.  Sudesh said that the main problem had occurred in 1993 when he, his brother, his father and a few workers were cornered by the LTTE.  He said that his father’s business had ceased operating at the end of 1993.  Two major LTTE leaders had been captured when he and his brother had been rescued from the LTTE in 1993 and because of this, so Sudesh stated, the LTTE wanted revenge.  He had never returned to the house where he lived previously.  His mother and sister continued living there.  People on scooters came and asked about him and his brother.  He believed that these people were members of the LTTE, because they spoke broken Singhala.  He claimed that the LTTE “roamed continuously in many places”.  Sudesh also said that in 1995, when he was at home with his brother and mother, someone had tapped at the door and said that they were from the police.  He and his brother jumped into the next yard.  The men, who were in plain clothes, searched the house and ransacked it.  A local shopkeeper later told them that the people who had come to the house had dumped some arms in a drain before doing so.  Sudesh said that he did not believe that these people were really from the police and after this incident he and his brother decided to leave the country.  Manoh said that he had nothing to add to his brother’s statement. 

8                     In response to questions from the Tribunal as to what had happened to other members of his family since he left Sri Lanka, Manoh said that his father had moved to the hill country to avoid problems with the LTTE, and his mother and sisters were living with his grandmother, so there was no longer anyone at the family home.  However, so he said, his father had told him by telephone that some of his former employees, who still worked in the Vanni area, had been asked about the family by the LTTE, which indicated that the LTTE was still interested in them.  In relation to their involvement with the UNP, the applicants told the Tribunal that their father was a member of the UNP and that this connection had helped them obtain licences for their business when the UNP was in power.  However, as the former opposing party was now in power, they were unable to seek protection from the police.  Their father, although not holding a formal position in the UNP, had acted as a coordinator for that body in Moratuwa, which was the suburb of Colombo in which they lived.  The applicants said that they had had some involvement with the UNP but not at the same level as their family.  Manoh said that he had had some minor problems because of his and his father’s involvement in the UNP.  He said that his family home had been attacked by members of the Sri Lanka Freedom Party (“SLFP”) and that members of the SLFP had also attacked UNP meetings in which he was involved.  These attacks all happened at election time.  Sudesh told the Tribunal that he had had less involvement in politics than his brother and that he had nothing to add to what his brother had said regarding the foregoing problems.  Manoh told the Tribunal that so far as he was aware his father had not had any problems because of his UNP membership since he (Manoh) had left Sri Lanka.  Sudesh said that because the UNP was no longer in power, his father was unable to obtain the licences needed to carry on his business and the business had closed.  He added that his father’s main fear was the LTTE and he now lives in the hill country some distance from Colombo.  Manoh told the Tribunal that he thought that he and his family would have problems if they returned to live in Moratuwa, because the government and SLFP members were angry with them because of their UNP membership and would cause them problems if they returned to live there.  The Tribunal asked the applicants why they had not previously mentioned their involvement with the UNP and the problems which such involvement had caused them.  Their response was that their main concern was with the problems they faced with the LTTE.  Sudesh said that they would not receive police protection because of their membership of the UNP.  At the hearing, the applicants produced a translation of a document from the police station at Moratuwa.  The document, dated 17 August 1993, stated that Mr Fernando senior and his business partner had experienced problems with the LTTE as the area in which they logged timber was also exploited by the LTTE who felled trees illegally to gain money for their cause.  The document also stated that the LTTE did not want Mr Fernando senior to continue his business and as a result he was harassed and threatened.  His business partner was abducted by the LTTE and according to information received some time later, he was subsequently killed.  In the middle of August (year not stated) Mr Fernando senior and his sons were captured by the LTTE but Mr Fernando senior managed to escape and get help from an army unit who saved his sons and captured some LTTE members, including two leading members of the group.  As a result of this the LTTE, which had a presence throughout the country, had made death threats against Mr Fernando senior and his family and they fear for their lives. 

The Decision At First Instance

9                     The Tribunal set out, in an uncontroversial manner, the legal requirements of refugee status.  It noted that the applicants’ applications for refugee status hinged on the claim that they were captured by the LTTE while working in their father’s timber business and that since that time the LTTE have pursued them and would continue to pursue them if they returned to Sri Lanka.  The Tribunal then said:

“However, there are serious discrepancies in the evidence which the brothers have provided regarding this incident and I do not accept that it occurred.”

10                  The Tribunal referred to the fact that there was no mention of this alleged capture in the applicants’ first written submissions.  The Tribunal referred to several other inconsistencies in relation to the submissions concerning that incident, including chronological inconsistencies.  The Tribunal then said:

“As I do not accept that the brothers were detained by the LTTE or that leading members of the LTTE were captured when the army rescued them, it follows that I do not accept that the LTTE are pursuing them because of this.”

11                  The Tribunal then said that even if it were to accept that the brothers were captured by the LTTE and that leading members of the LTTE were captured by the army when the applicants were rescued, it would find to be far-fetched and implausible their claim that they were sought by the LTTE in Colombo throughout the three or so years they remained in the country and that they would continue to be of interest to the LTTE and at risk from harm from them if they returned to Colombo.  It gave its reasons for that conclusion.  Those reasons included information about the current situation in Colombo.  Colombo was, so the Tribunal found, and has always been firmly under the control of the central government; the police and armed forces in Colombo being constantly vigilant to the possibility that LTTE members were trying to infiltrate the city.  Systems were in place involving registration of non-residents, wide-spread checking of identity, registration of Tamils in Colombo, short detention of those unable to identify themselves and longer detention for anyone suspected of LTTE involvement.  The Tribunal referred to information from its sources from which it concluded that it was implausible that the LTTE, having suffered a number of defeats and set backs in recent years, would expend its resources pursuing the applicants across Sri Lanka or risk detection and arrest in Colombo by harassing them or their family in the manner claimed.  The Tribunal listed its sources of information.  The Tribunal said that it might be the case that the applicants’ father owned a timber business which operated in areas where there was an LTTE presence, that this had caused him problems by way of extortion or stopping him from extracting timber.  However, the Tribunal held that it did not accept that Mr Fernando senior or his family faced more than a remote chance of being harmed by the LTTE in Colombo because of that situation.  Furthermore, so the Tribunal found, the problems relating to the timber business were not caused by a desire to harm Mr Fernando senior or his family for any of the reasons contained in the Convention.  In any event, so the Tribunal noted, as Mr Fernando senior no longer operated a business in the area, there was no reason to suppose that he or his family were of any particular interest to the LTTE today.  In relation to the applicants’ claim that they had a well-founded fear of persecution by the Government of Sri Lanka or by members of the SLFP if they returned to that country, because they and their father were associated with the UNP, the Tribunal said that it did not accept that the brothers had such a well-founded fear.  The Tribunal noted that they had made no mention of this claim before the hearing, and that the evidence provided at the hearing was vague and unconvincing.  The Tribunal stated that it did not accept that the applicants had any significant association with the UNP, nor that they feared that they would face serious problems amounting to persecution on their return because of their alleged association with the party.  Furthermore, so the Tribunal observed, while it was “certainly true” that some members of political parties in Sri Lanka engaged in violent acts against their opponents at election time, there was nothing in the sources consulted by the Tribunal which suggested that UNP members or supporters were genuinely at risk of persecution from the current government or members of the SLFP merely because they supported the UNP.  Thus, so the Tribunal reasoned, even if it were to accept that the applicants or their father had played a significant role in the local UNP branch, it did not accept that they faced a real chance of experiencing serious harm amounting to persecution because of this.  Again, the Tribunal listed its sources of information.  The Tribunal concluded that it was not satisfied that the applicants were people to whom Australia had protection obligations under the Refugees Convention.

The Grounds of Review

12                  The applicants, who were unrepresented, contended that the Tribunal had erred in law in finding that they were not refugees and in failing to find that there was a real chance of persecution if they returned to Sri Lanka.  The applicants tendered two affidavits, one sworn by each of them.  Save for different particulars of their schooling, working history, arrival in Australia and the date of the respondent’s primary decision, the affidavits were relevantly identical.  The respondent objected to the tender of those affidavits on the grounds of relevance.  However, at the hearing this morning the respondent had no objection to the affidavits being admitted into evidence subject to relevance, on the basis that I would rule on the issue of relevance when I delivered my reasons for judgment.  I have read the affidavits.  They relate almost entirely to the factual matters which were put, by way of submission and otherwise, to the Tribunal.  The final paragraph in each case seeks to explain why each applicant failed to apply for refugee status immediately upon arrival in Australia.  In my view, the contents of both affidavits are irrelevant to the matters before the Court.  I return to the grounds of review. 

13                  The applicants listed twelve separate grounds for their application.  The first ten such grounds contain factual claims which are relevantly identical to the first ten paragraphs of the applicants’ written submissions to the Tribunal.  I accept the respondent’s submission that these first ten grounds are concerned with the merits of the applicants’ claims and do not constitute grounds of review under s 476 of the Act.  I now turn to grounds 11 and 12. 

14                  Grounds 11 and 12 were as follows:

“11.     The Tribunal erred by making unreasonable finding of the Applicants (sic) did not suffer persecution for any of the reasons contained in Convention, and also in application of the correct test whether there was a “real chance” which involved the evaluation of the possibilities, and speculation about the future having regard to past events, which was not consistent with the reasons or judgment of Beaumont, Einfeld and Foster JJ in Guo Wei Rong v Minister for Immigration and Ethnic Affairs & Another (135 ALR 421).

 12.      The Tribunal therefore should have determined that the Applicants’ family past adverse treatment had been persecution for Convention reasons, and that on the balance of probabilities the Applicants’ fear of persecution on Convention grounds was well-founded.”

My Reasoning

15                  In my view, the Tribunal understood and applied the correct test as to whether there was a real chance that the applicants would face persecution for a Convention reason if they returned to Sri Lanka.  The applicants’ reliance, in Ground 11, on the decision of the Full Court of this Court in Guo is misplaced.  In overruling that decision, the High Court of Australia in Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at 572 explained that conjecture or surmise had no part to play in determining whether a fear is well-founded.  The Court held that a fear of persecution is not well-founded if it is merely assumed or if it is mere speculation. 

16                  The problem which the applicants face in this matter is that the Tribunal did not believe them.  I have, earlier in these reasons, described how the Tribunal reached that view.  In my opinion, the Tribunal’s approach in assessing the applicants’ credibility was a rational one and was made by reference to material which supported its ultimate conclusion.  In those circumstances, it cannot be said to have erred in law in disbelieving the applicants.  I refer to the recent decision of Moore J in Jairo Londono-Castaneda v Minister for Immigration and Multicultural Affairs [1999] FCA 230 where, at 7-8 his Honour conveniently refers to the relevant authorities, including the decision of a Full Court of this Court in Kopalapillia v Minister for Immigration and Multicultural Affairs [1998] FCA 1126.  A fair reading of the Tribunal’s reasoning shows that it assessed the matter from various perspectives, which I have outlined in some detail.  In summary, they were as follows.  First, the Tribunal rejected the applicants’ claims on the basis that it did not believe the applicants.  Then it made an assessment of what would be the situation if it had believed the applicants’ claims.  It decided that their claims to be at risk of the LTTE in Colombo in such circumstances were far-fetched and implausible.  It also rejected so much of the claims as were based on the alleged association with the UNP.  As I have said, the Tribunal cited its sources for such assessments.  In my view, the findings made by the Tribunal were open to it and its reasoning does not disclose any error of law.  Both of these grounds of review (save for the reference in Ground 11 to the “real chance” test) amount, in my opinion, to an attempt to revisit, in this Court, the underlying merits or demerits of the case heard by the Tribunal and, in turn, the merits of the Tribunal’s decision.  This Court is not permitted to engage in that exercise. 

Conclusion

17                  For the foregoing reasons the application will be dismissed with costs.

Associate:

Dated:              7 April 1999