FEDERAL COURT OF AUSTRALIA

Rajenthiram v Minister for Immigration [1999] FCA 432

MIGRATION – Migration Act 1958 (Cth) – review of decision of Refugee Review Tribunal (“the Tribunal”) – whether Tribunal erred in its approach to the assessment of the applicant’s credibility – whether Tribunal’s findings and conclusions on the applicant’s credibility are open to review – whether imputed political opinion.

Migration Act 1958 (Cth), ss 36(2), 420, 476

Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126, followed

Emiantor v Minister for Immigration and Multicultural Affairs [1998] FCA 1186, followed

Careem v Minister for Immigration and Multicultural Affairs [1999] FCA 378, followed

SUJANTHAN RAJENTHIRAM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 1246 of 1998

BRANSON J

SYDNEY

14 APRIL 1999

THE COURT ORDERS THAT:

The decision of the Refugee Review Tribunal be affirmed.

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

REASONS FOR JUDGMENT

Introduction

1                     The applicant is a 20 year old citizen of Sri Lanka of Tamil ethnicity who arrived in Sydney on 21 July 1998.  The applicant arrived with a Sri Lankan passport but with no visa to enter Australia.  Upon his arrival the applicant was interviewed at Sydney Airport by an Immigration Inspector.

2                     He was subsequently detained at Villawood Detention Centre.  The applicant lodged an application for a protection visa on 28 July 1998, which was refused by a delegate of the Department of Immigration and Multicultural Affairs (“the Department”) on 31 August 1998.  On 9 September 1998 the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for a review of the Department’s decision to refuse to grant him a protection visa.  The application for review was heard by the Tribunal on 27 October 1998.  On that occasion the applicant had the assistance of lawyers.

3                     On 9 November 1998, the Tribunal affirmed the Department’s decision not to grant to the applicant a protection visa.  On 18 November 1998 the applicant lodged an application in this Court for judicial review of the decision of the Tribunal.

4                      

Section 36(2) of the Migration Act 1958 (Cth)(“the Act”)provides that a criterion for the grant of a protection visa is that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees as amended by the Protocol relating to the Status of Refugees (“ the Convention”).  Article 1A(2) of the Convention defines a refugee, so far as is here relevant, as 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 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.”

Background Facts

5                     The applicant attached to his application for a protection visa a statement which outlines his story of his experience in Sri Lanka. The following facts are taken principally from that statement.

6                     The applicant is a Tamil who was born in Colombo.  During riots in 1983, the applicant and his family fled to Jaffna where he studied at the Jaffna Hindu College.  The applicant states that at this time the Liberation Tigers of Tamil Ealam (“the LTTE”) stronghold was expanding and that because his family was supporting the Tamil United Liberation Front (“TULF”) party, they were approached and threatened by senior LTTE militants. The applicant states that the LTTE demanded money from his father and threatened to abduct his children.  He further states that government security officers arrested and threatened his father because they suspected him of involvement in the LTTE. The applicant’s father died in 1986.  To escape the LTTE, the mother moved the family back to Colombo.

7                     The applicant studied at Bambalapitiya Hindu College where he says that he was periodically summoned to the Principal’s office for questioning, and taken to a police station for interrogation “to get information with regard to LTTE infiltration in Colombo.”  The applicant states he was “branded as LTTE sympathiser and a Tiger”, and that he was assaulted and kicked by police officers because he failed to assist police.  He also states that because of his appearance he was suspected of being a LTTE cadet and subjected to torture.  The applicant states that his mother intervened by bribing police officers from time to time.  After ex-President Premadio was assassinated in 1993 the applicant says that he was arrested and detained for more than a month and was released after police officers were bribed.

8                     The applicant states that the LTTE tried to persuade his mother to send the applicant to India to be trained.  When his mother refused, he states that the LTTE ordered that she hide LTTE arms and ammunitions in her house, and that she was threatened with death or abduction of her children if she refused.

9                     The applicant states that in 1994 and 1995 he was periodically arrested and tortured.  On some occasions he was forced as a “hooded man” to identify Tamil youths.  When he failed to identify anyone he was detained until released with his mother’s assistance.  The family applied to migrate to Australia as refugees, but the application was rejected.

10                  In 1997 the applicant commenced employment as a purchasing officer at the “People’s Needs Pty Ltd”, a company which purchased goods from Anuradhapura and Kurunegalla and sold them for profit in Colombo.  The applicant states that his employers were assisting LTTE by supplying goods to them while in transit on their buying trips.  The applicant states that in March 1998, the van he was travelling in while on a purchasing trip to Anuradhapura was stopped and searched, and some barrels of petrol were seized.  After this he was detained and later transferred to a prison where he was tortured and assaulted by police officers and Singhalese inmates.  The applicant said that police officers threatened to take him before the courts to have him imprisoned permanently.  The applicant states that he was released after his mother bribed a police officer and with the assistance of an “agent” he left Sri Lanka.

11                  The applicant said that the agent made all the travel arrangements and the agent accompanied him to Australia.  He also said the agent only gave him his passport when he arrived in Australia.  Certain pages of the applicant’s passport were missing having apparently been ripped out of the passport.

12                  On 27 August 1998 the applicant was interviewed by an officer of the Department of Immigration and Multicultural Affairs (“the department officer”).  On 31 August 1998, the department officer refused the applicant’s application for a grant of a protection visa.  In his reasons, the department officer expressed doubts about the veracity of the applicant’s claim of arrest and torture in March 1998 on the basis that the applicant did not mention this incident at his airport interview.  Nor did the department officer find it plausible that after the applicant was detained in March 1998 he was subsequently moved to another detention area where he was held for a longer period of time.  The department officer also found it implausible that the agent who assisted the applicant’s flight from Sri Lanka would be able to arrange for his passport to be renewed just after his release, given the gravity of the alleged offence.

13                  The department officer considered that the applicant was not a person to whom Australia has protection obligations under the Convention on the basis that he does not have a real chance of persecution if returned to Sri Lanka, and that his fear of persecution is not well-founded.

Decision of the Tribunal

14                  The Tribunal affirmed the decision of the departmental officer not to grant to the applicant a protection visa.  After careful examination of the applicant’s evidence, the Tribunal found that the applicant was not a “witness of truth”.  The Tribunal pointed to “significant differences” between what the applicant disclosed during his interview at the airport by an immigration officer and what the applicant has since disclosed to the Department and the Tribunal.  In particular, the Tribunal referred to the applicant’s failure to disclose at the airport interview his arrest and imprisonment in March 1998 in Colombo and concluded that the account provided in his statement and which he elaborated upon at the Departmental hearing and before the Tribunal was “a fabrication”.

15                  The Tribunal considered that the alleged inconsistency as to the applicant’s account of the nature of his employer’s business, and the unlikelihood of a person wanted by the police being able to depart from Sri Lanka using his own passport also pointed to the conclusion that the applicant’s evidence was a fabrication.

16                  The Tribunal accepted the evidence of the applicant that he left Sri Lanka travelling on his own passport.  It noted that his passport had been updated on 1 July 1998 when a new photograph showing him as an adult was included and also details of his National Identity Card number and his occupation were added.  The Tribunal concluded that the “obvious explanation” for the fact that the applicant’s passport was updated on 1 July 1998 was that the applicant did not have any problems with the Sri Lankan authorities at that time.  It rejected the applicant’s evidence that he was able to pass through the Colombo airport using his own passport because his agent had paid bribes to officers at the airport.  The Tribunal referred to “information” contained in a Danish Immigration Service report which the Tribunal considered “suggests that it is highly improbable that the agent would have been able to bribe the National Intelligence Bureau departure control officers.”

17                  The Tribunal concluded:

“that if the Applicant faced demands for bribes from the police it was because his mother owned a boarding house and he was perceived as capable of paying such bribes rather than because of his race, his imputed political opinion or any other Convention reason.”

18                  The Tribunal did not accept that the Applicant was repeatedly arrested in 1993, 1994, 1995 and 1996 as he suggested.  Nor did it accept that he was required to act as a “hooded man” to identify LTTE cadres nor that he was assaulted, kicked or otherwise tortured by the Sri Lankan security forces.

19                  The Tribunal’s reasons for decision record its ultimate conclusion as follows:

“… there is nothing in the evidence before me to suggest that the Applicant will be of particular interest to the authorities if he returns to Sri Lanka now or in the foreseeable future.  I accept that he is a Sri Lankan Tamil but I do not accept that, as a Tamil who was born in Colombo and who has been resident in Colombo by his own account since 1987, the Applicant will attract the suspicion of the Sri Lanka authorities by reason of his race alone or any political opinion which may be attributed to him by reason of his race.  I do not accept that there is a real chance that the Applicant will be arrested if he returns to Sri Lanka as he claims, nor that consequent upon his arrest he will be assaulted, imprisoned, tortured or murdered if he returns to Sri Lanka.  I do not accept, therefore, that he has a fear of being persecuted by reason of his race (Tamil) or his imputed political opinion (support for the LTTE) that is well-founded in the sense set out in the authorities above.

I am not satisfied that the Applicant has a well-founded fear of being persecuted for a Convention reason if he returns to Sri Lanka.  It follows that he is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.  Consequently the Applicant does not satisfy the criterion set out in subsection 36(2) of the Migration Act for the grant of a protection visa.”

Consideration

20                  The submissions made on behalf of the applicant departed somewhat from his amended application. No objection was taken by the respondent to this course.

21                  The applicant contended that the Tribunal erred in its approach to the assessment of the applicant’s credibility and thereby failed to adopt fair and just procedures and to act according to the substantial merits of the case (s 420 of the Act).  Reliance was placed on the decision of Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126 .

22                  In Kopalapillai the Full Court observed:

“Whilst a decision maker concerned to evaluate the credibility of the testimony of a person who claims to be a refugee in Australia will need to consider, and in many cases consider sympathetically, possible explanations for any delay in the making of claims, and for evidentiary inconsistencies, there is not a rule that a decision maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for the delay or inconsistency …  Nor is there a rule that a decision maker must hold “a positive state of disbelief” before making an adverse credibility assessment in a refugee case.”

23                  It will ordinarily be difficult for an applicant to have a decision of the Tribunal set aside where the decision is based on the Tribunal’s assessment of the applicant’s credibility.  As has been accepted in a number of cases, where the approach of the Tribunal to the assessment of an applicant’s credibility was open to it on the material before it, was based on rational grounds and was arrived at after the consideration of matters that were logically probative of the issue of credibility, the Tribunal’s assessment of credibility will not be open to challenge (see Full Court decisions in Emiantor v Minister for Immigration and Multicultural Affairs [1998] FCA 1186; Kopalapillai v Minister for Immigration and Multicultural Affairs; Careem v Minister for Immigration and Multicultural Affairs [1999] FCA 378).  This Court may not, under the guise of identifying error of law, engage in merits review.

24                  I am not satisfied that the Tribunal in this case erred in its approach to the assessment of the applicant’s credibility.  The Tribunal found that the explanation offered by the applicant for the significant differences between what he said when interviewed at the airport and his later evidence was incredible.  No basis has been identified on which I could interfere with this finding.  The Tribunal also found that the applicant made contradictory statements concerning his place of employment.  The statements certainly were to some degree different.  At the airport the applicant said that he had been working in a chilli export factory called ‘People’s Needs’ as a purchasing officer.  In his statement he said that he had been sent with other employees from ‘People’s Needs’ to certain country areas to get vegetables, coconuts, spices and other food items which could be bought cheaply in those areas.  It appears that the Tribunal found the variety of these intended purchases to be inconsistent with ‘People’s Needs’ being a chilli export factory.  The reasons for decision of the Tribunal reveal that it placed weight on matters of demeanour in making its finding that he had given contradictory evidence concerning his employment.  I am not persuaded that this finding was not open to the Tribunal which had the benefit of seeing and hearing the applicant give evidence, albeit through an interpreter.  These two findings were logically probative of the issue of the applicant’s credibility and the Tribunal’s overall assessment of the applicant’s credibility is thus not open to challenge.

25                  Complaint was also made that in assessing the applicant’s credibility the Tribunal also placed weight on a report of the Danish Immigration Service (“the Danish report”) but, in doing so, misinterpreted the significance of the relevant passage in the report.  The Danish report includes the following passage:

“On the question of corruption of officials in connection with illegal departure, both the NIB [National Intelligence Bureau] and the CID [Criminal Investigation Department] said that there had been cases in which it came to light that immigration officers had taken bribes and allowed people to leave on false papers …

As regards illegal departure of wanted persons on documents made out in their own name, it was agreed that such a case would have to involve complicity on the part of one of the NIB departure control officers.  It was added that, at any rate, no cases of NIB staff taking bribes had come to light over the last six years or so (the time for which the delegation’s CID and NIB interviewees had been working at the airport)”.

26                  The Danish report goes on to set out the view of a representative of a western embassy who worked at the airport that the airport was “ ‘leaking like a sieve’ with couriers virtually able to operate quite overtly”.

27                  It does appear to be the case that the Tribunal accepted a report of what certain NIB and CID officials had said to the authors of the Danish report as involving confirmation by the authors of the truth of what the officials said.  Seen in the context of the whole of the relevant section of the Danish report it seems unlikely that the report intended to convey such confirmation.

28                  However, this issue was peripheral to the Tribunal’s conclusion as to the applicant’s credibility and to its finding that he had not been arrested by the Sri Lankan authorities in March 1998.  The Tribunal concluded that the fact that the applicant’s passport was updated in July 1998 showed that he was not at that time wanted by the Sri Lankan authorities.  Its conclusion, based in part on its reading of the Danish report, that the applicant’s agent could not have bribed the National Intelligence Bureau departure control officers to allow the applicant to pass through the airport using his own passport, merely provided further support for its conclusion that the applicant was not wanted by the Sri Lankan authorities at the time that he left Sri Lanka.

29                  This application for review so far as it is based on the Tribunal’s approach to matters of credibility, and its findings of credibility, must fail.

30                  The Tribunal did not accept the applicant’s story that he had been repeatedly arrested in 1993, 1994, 1995 and 1996. In finding that he had not been so arrested the Tribunal had regard to the view which it had formed as to the applicant’s credibility. It can not be said that there was no material before the Tribunal capable of justifying this finding, or that the finding necessarily involved an error of law. It was an important finding which suggested against the applicant having a well-founded fear of being persecuted for a Convention reason if he returns to Sri Lanka.

31                  The applicant further contended that the Tribunal made no finding of fact concerning a significant claim made by him, namely that he was suspected of assisting the LTTE because LTTE people came to his home and as a consequence the police would interrogate him and beat him.  As to this aspect of the applicant’s story, the Tribunal said:

“To the extent that the Applicant was suspected of aiding and abetting the LTTE or of providing it with financial support, there are acts which are proscribed under the law of Sri Lanka and the enforcement of such prohibitions would not amount to ‘persecution’ for the purposes of the Convention but rather would constitute conduct appropriate and adapted for legitimate ends of Government policy in the context of the threat posed to the Government of Sri Lanka by the LTTE: see Applicant A, … per McHugh J at 354-5.”

32                  The applicant also contended that the Tribunal should have recognised “that all conduct of police officers is not legitimate merely because it is in the context of a national emergency” and further should have speculated “whether the applicant had a well founded fear of persecution because of a political opinion imputed to him because of his association with those who allegedly visited him.”  It seems to me that the Tribunal is to be understood as concluding that if the applicant was suspected of aiding and abetting the LTTE because LTTE people came to his home, this was because his association with LTTE members in such circumstances gave rise to a reasonable suspicion of breaches of the law on his part.  The attention paid to him by the authorities in such circumstances would not be for reason of imputed political opinion but by reason of his being suspected of having engaged in illegal conduct.

33                  In any event there is, in my view, no reason to conclude that the Tribunal overlooked this aspect of the applicant’s story when it reached the conclusion that the applicant was not wanted by the Sri Lankan authorities at the time that he left Sri Lanka, and that there was no reason to think that he would be of particular interest to the authorities if he returns to Sri Lanka now or in the foreseeable future.  It is this conclusion that was fatal to the applicant’s claim to be entitled to a protection visa.  In my view, there is no ground of review open under s 476 of the Act upon which this conclusion can be challenged.

34                  The application must be dismissed.

Associate:

Dated:              14 April 1999