FEDERAL COURT OF AUSTRALIA

Thuraisamy v Minister for Immigration & Multicultural Affairs [1999] FCA 812

MURALEEKARAN THURAISAMY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 501 of 1999

LINDGREN J

11 AUGUST 1999

SYDNEY

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant 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                     The applicant applies under s 476(1) of the Migration Act 1958 (Cth) (“the Act”) for review of a decision of the Refugee Review Tribunal (“RRT”) dated 3 May 1999.  The RRT affirmed a decision of a delegate of the respondent (“the Minister”) not to grant the applicant a protection visa.  Section 65 of the Act provides that the Minister may grant a visa only if satisfied that the criteria for it prescribed by the Act or the Migration Regulations have been satisfied.  Section 36 of the Act provides that a criterion for a protection visa is that the applicant be 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 for 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.”

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

PROCEDURAL BACKGROUND

3                     The applicant first arrived in Australia on 15 February 1994. He has not, however, been in this country continuously since then.  His last arrival here was on or about 25 March 1995.  On 28 July 1997, he applied for a protection visa (visa sub-class 866).  A delegate of the Minister refused the application on 4 April 1998.  On 24 April 1998, the applicant applied to the RRT for review of that decision.  The RRT conducted a hearing on 1 March 1999.  As noted above, on 3 May 1999, the RRT affirmed the delegate’s decision. The applicant filed his present application in this Court on 31 May 1999.

THE REASONS FOR DECISION OF THE RRT

4                     The RRT commenced its Reasons for Decision by referring to the procedural background, the legislative framework, and the law relating to the Convention definition of a “refugee”.  It then turned to consider the applicant’s claims and evidence. 

The applicant’s claims and evidence before the RRT

5                     The evidence provided by the applicant was found in his original application and accompanying statement, a lengthy typed submission dated 1 March 1999 by his Migration Consultant, and his oral evidence at the hearing before the RRT also on 1 March 1999.  Apparently oral submissions were made on his behalf on the hearing by the Migration Consultant.  Following the hearing, supplementary written submissions were made on the applicant’s behalf on 23 March 1999.

6                     The following is a summary of the applicant’s claims and evidence, and does not express a finding, conclusion or other response of the RRT except if and when I so indicate.

7                     The applicant is a Tamil male, who was born on 20 August 1963 at Badulla in the Province of Uva in the hill country of Sri Lanka.  He has three brothers (one his senior and two his juniors) and two sisters.  Until 1970, the applicant’s father worked in the grandfather’s business in Badulla.  In 1971, the family moved to Colombo where the father established a business as a dealer in electrical equipment.  The business was very successful and the family enjoyed a good lifestyle until 1983. 

8                     During the ethnic riots of 1983, the business was attacked and looted and the premises were burned down.  The family moved to a refugee camp until mid August 1983 when they moved to Jaffna, and the applicant’s father bought a house and established a cable manufacturing business there.  After approximately four months, the applicant and his elder brother returned to Colombo and re-established the family’s former electrical equipment business.  The applicant also worked partly for the cable manufacturing business.  Due to the continuing racial hostilities in Colombo, the applicant’s elder brother suddenly, and without forewarning his family, left Sri Lanka for the United Kingdom towards the end of 1983.  The applicant, then aged twenty-one years, was left with the sole responsibility of looking after the family business.

9                     In the period 1985-1987, the applicant imported raw materials into Colombo and transported them to Jaffna.  The Liberation Tigers of Tamil Eelam (“LTTE”) removed cables and vehicles from the factory in Jaffna.  As well, the Sri Lankan Army harassed him, accusing him of supplying cables and equipment to the LTTE.  He also continually suffered losses in transporting goods to Jaffna.  In 1987, during the Indian Peacekeeping Force (“IPKF”) operation, the factory in Jaffna was shelled and damaged beyond repair, and the family was forced to abandon the business.  (According to the RRT’s Reasons for Decision, at the hearing before the RRT, the applicant said that the family had in fact been forced to abandon operations prior to this, in 1986, because the factory had been in a security zone, and that later, when the IPKF was in Jaffna, the factory was damaged completely.)

10                  In August 1987, one of the applicant’s younger brothers married in Jaffna.  In October 1987 that brother was arrested and tortured by the IPKF, who wrongly accused him of being a supporter of the LTTE.  With his wife and the help of his father-in-law, the brother left for Canada where he and his wife settled permanently.  One of the applicant’s two sisters moved to Bahrain.  His youngest brother joined his elder brother in the United Kingdom.  This left the applicant, one sister and the parents in Sri Lanka, the parents and the sister remaining in Jaffna and the applicant, alone of the family, in Colombo.

11                  In the period 1989-1990, the applicant developed some influential connections and friendships in Colombo.  One of these was Mr Rohan Jeyakody who married President Premadasa’s daughter.  Another was Mr M W Gunathilaka, Deputy Inspector General, President of the Security Division, and who formerly had been Assistant Superintendent of Police and attached to the Ministerial Security Division which looked after the safety of President Premadasa.

12                  In June 1990, the applicant was visiting his parents in Jaffna when war started again.  On the night of 10 August 1990, the parents’ house was damaged when bombs fell on a neighbouring house.  The applicant decided to move his family to Colombo.

13                  The applicant obtained passes from the LTTE to enable his parents to move to Colombo.  As a “condition”, his sister had to remain in Jaffna and the house deeds and family possessions had to be handed over to the LTTE as security.  Finally, by February 1991 the applicant and the parents crossed the Jaffna Lagoon and reached Vavuniya in a tractor.  Upon their arrival later in Colombo the father, who suffered from Parkinson’s disease, was hospitalised for a month for medical treatment.  The applicant and his parents rented a house in Colombo.

14                  The applicant was not required to register with the police in Colombo as he spoke fluent Sinhalese and his identity card recorded that he had been born in Badulla and was a permanent resident of Colombo.

15                  In October 1992 the applicant accommodated a male named Thiyagaraja Premadasan, also known as “Kannan”, aged 22, a close relative of his brother’s wife, at the applicant’s business premises in Colombo.  Kannan intended to go to Canada.  It was the applicant’s practice to accommodate relatives from Jaffna above the business premises and to give them temporary jobs.  The applicant employed Kannan temporarily as a packing assistant.  The applicant did not accommodate anyone involved in terrorist or other violent activities. 

16                  Approximately three weeks after Kannan’s arrival, three armed persons in civilian dress entered the premises and arrested Kannan. He was handcuffed and dragged out of the premises at gunpoint.  The applicant’s subsequent enquires revealed that Kannan had been arrested, not by the Pettah Police with whom he was registered as a “temporary resident” at the applicant’s premises, but by the Sapukasgantha Anti-Subversive Unit under orders from Superintendent of Police, Douglas Peiris.  With the assistance of the International Committee of the Red Cross (“ICRC”), the applicant visited Kannan several times.  The ICRC issued the applicant with a “next of kin” pass.  Kannan said that he had been tortured and forced to admit that he was an LTTE member. 

17                  By the end of December 1992, Kannan’s father visited Colombo from Jaffna.  At the father’s instigation, the applicant sought the assistance of Mr Gunathilaka.  Kannan was brought before a magistrate and released without charge.  He subsequently obtained asylum in the United Kingdom.

18                  Soon after Kannan’s departure, the applicant’s business premises were searched for LTTE suspects.  This continued once a week for five months until the applicant revealed that Kannan had left the country. 

19                  On 1 May 1993, President Premadasa was assassinated.  On 20 May 1993, the applicant was arrested and taken to the Headquarters of the Criminal Investigation Department (“CID”).  He was told that some of his employees had also been arrested and that his personal diary and some financial records had been seized.  He was kept alone and was handcuffed to a table.  Later, he was ordered to undress, was handcuffed to a window grill, assaulted, threatened, and accused of being a member of, and spying for, the LTTE.  He was questioned in relation to several issues, including whether he had undergone LTTE training, his relations with Mr Rohan Jeyakody, President Premadasa’s son-in-law, and why he had influenced Mr Gunathilaka to release Kannan from detention.  He was not allowed to sleep or sit down for two days.  He was not fed.  He was often kicked.  No one came to visit or see him.

20                  After four days of this ordeal, the applicant was released, apparently due to intervention by Mr Jeyakody.  He was told that he was released because “big heads got involved” and that if he were caught again he would be killed.  He hired a taxi and went home. 

21                  Afterwards he spoke to Mr Jeyakody.  Mr Jeyakody told him that he must be extremely careful and that after the assassination of his father-in-law, the new President had become hostile towards his family.  He said that if there was trouble again, he felt that he and his family would not be able to help the applicant.  The applicant decided that he must either go to Jaffna and join the LTTE or wind up the business in Colombo and leave Sri Lanka forever.

22                  On three occasions, the applicant left Sri Lanka and later returned.  On a fourth occasion, that on which he last came to Australia, of course he did not return.  These occasions of departure and return, seven in all, assumed importance in the RRT’s Reasons for Decision.

23                  The first occasion involved an abortive departure for Canada.  On 5 June 1993 the applicant left Sri Lanka for Canada, via Singapore and Thailand.  His brother in Canada had agreed to sponsor his parents, but had been unable to sponsor the applicant as a “mature aged person”.  The applicant had paid his travel agent US$5,000 and promised to pay him a further US$5,000 on arrival in Canada.  At the airport in Thailand, however, the applicant learnt that he could not proceed to Canada, and, as requested by his travel agent, he returned to Sri Lanka, arriving back in Colombo on 19 June.  A friend in “Customs”, Mr Yoganathan, helped the applicant to enter the country safely.  Mr Yoganathan looked after “Immigration” and the CID.  The CID had an arrangement with “Customs” that friends of Customs officers could leave the country.  Immediately following his return to Sri Lanka, the applicant stayed with his friend from the Customs Office.  The applicant was “withdrawn, distrusting and terrified”.  The police started visiting his parents looking for the applicant and monitoring the applicant’s business premises.  Frequently they took in his employees for questioning.

24                  The second occasion to which I referred involved a visit to Australia.  In December 1993 the applicant applied for a visa to visit this country.  On 2 January 1994, he was issued with such a visa (class 670) valid until 31 March 1994.  Mr Yoganathan, with whom the applicant stayed pending his departure, facilitated that departure by bribing some CID and Immigration authorities at the airport.  However, the applicant did not leave Sri Lanka for Australia until 12 February 1994.  In answer to a question from the RRT, he said that he did not leave earlier because there had been no seats available in January.  The applicant arrived in Perth on 15 February 1994.

25                  Subsequently, the applicant was granted an Australian Temporary Resident Visa (sub-class 435).  There were several “renewals” or “extensions” of that visa until 30 June 1994, 30 November 1994, 31 March 1995 and 31 July 1996.

26                  By October 1994, the applicant’s parents had secured visas to migrate to Canada, and had wound up and sold the family business.  However, the applicant’s father was reluctant to leave and fell seriously ill in February 1995.  At the request of his mother, the applicant returned to Sri Lanka, departing Australia on 28 February 1995.  Mr Yoganathan again ensured his safe passage through the airport.

27                  During the applicant’s absence from Sri Lanka, the Government had changed, a cease-fire with the LTTE had been entered into, and peace talks had begun.  The applicant decided to visit Madras to assess whether the family could relocate to India.  He obtained an Indian visa on 9 March 1995 for a one-week visit.  He travelled to Madras.  However, he found the situation hostile due to an LTTE gaol break in Tamil Nadu, Madras.  He returned to Sri Lanka at the end of the one week visit, that is, still in March 1995.

28                  Two days after he returned, his former business premises were raided and the police were looking for him.  The CID had been monitoring people returning from India, like himself.  He realised he was in danger and on 22 March 1995 left the country for Australia, again with the aid of Mr Yoganathan.  This was the seventh occasion on which the applicant had passed through a Sri Lankan exit or entry point.

29                  On returning to Australia, the applicant did not immediately apply for refugee status as he was uncertain as to the correct decision to make and hoped that the situation in Sri Lanka would soon be conducive to his return to that country.  He therefore continued to extend his visa sub-class 435 until no further extensions were granted.  Only then did he apply for a protection visa (as noted earlier, that was on 28 July 1997.)

30                  The RRT member had difficulty in believing that the applicant had been able to enter or leave Sri Lanka on his own Sri Lankan passport on no less than seven occasions since his arrest in 1993, if he had as he alleged, a well-founded fear of persecution by the Sri Lankan authorities.  The member put to the applicant that according to the Danish Immigration Service, the departure of wanted persons travelling on their own passports would have to involve complicity on the part of the National Intelligence Bureau (“the NIB”) Departure Control officers, yet from 1991 to 1997 no such cases of bribery had come to light.  The applicant responded that thousands of people left Sri Lanka as refugees and that travel agents had links with the CID and NIB, whose staff took bribes and allowed people to leave the country. 

31                  The applicant stated that he was able to pass through checkpoints as his name was of Indian origin, he had been born in Badulla, he had a Colombo address on his identity card, and he spoke Sinhalese.  He conceded that he did not think that his name was on a “wanted list” and that it was only if he were arrested that the authorities would learn of his background.

32                  In explaining why the authorities had come searching for him after he had returned from India, the applicant claimed that at the airport, they checked only the passports of suspicious looking people and checked the disembarkation cards later to see if a passenger was on the wanted list.  The RRT member put to the applicant that this contradicted evidence from the Danish Immigration Service. 

33                  The applicant told the RRT member that he had returned to Sri Lanka from Australia and from India, as he believed there was a cease-fire in place and that he had nothing to fear.  Only after the raid on the former business premises did he become afraid and learn that the cease-fire had been unsuccessful.

34                  A submission forwarded by the applicant’s representatives to the RRT on the day of the hearing (1 March 1999) stated that the applicant’s case was that he was wanted by the Sri Lankan authorities because he was believed to have harboured “key LTTE members” and to have provided financial assistance to the LTTE. The submission claimed that after the applicant’s release he had been pursued by police on several occasions and that there was a high chance of his being detained and tortured if he were to return to Sri Lanka.  Although it was submitted that all Tamils in Colombo were at risk of persecution, the evidence cited by the applicant’s representatives stated that: “[t]here has never been a totally indiscriminate regime of arrests of Tamils in Colombo”. 

35                  In a post-hearing submission dated 23 March 1999, the applicant’s representatives submitted that the applicant, as a Tamil who has LTTE records with the authorities, had a well-founded fear of persecution despite having visited Sri Lanka during a peaceful period.

“Background information” recorded by the RRT

36                  The RRT member provided background information on Sri Lanka along the following general lines. 

37                  For the past fourteen years the Sri Lankan Government has fought the LTTE which seeks to establish a separate state in the country’s northern and eastern provinces for the Tamil minority.  It is not necessary to detail the history of the conflict.  However, the following aspects in relation to Colombo are noteworthy.  When an attack by the LTTE is thought to be imminent or has just taken place, the security forces conduct mass round-ups of Tamils.  Those particularly at risk of being detained are young Tamil men and women who have recently arrived from the north or the east.  There are also checkpoints throughout Colombo at which the identity of every person is checked. 

38                  Between five and ten per cent of those arrested in the course of security checks are held for periods longer than twenty-four to forty-eight hours.  According to the Australian Department of Foreign Affairs and Trade, there have been no reports of disappearances in police custody in the last twelve months in Colombo.  However, approximately half of the people in detention were mistreated, in a small number of cases, seriously. 

The conclusions of the RRT

39                  The RRT did not find that the applicant genuinely feared that he would be persecuted were he to return to Sri Lanka.  Rather it thought the applicant’s fear to be merely assumed.  The applicant’s conduct was held to be inconsistent with a fear of persecution, especially his conduct of repeatedly leaving and returning to Sri Lanka on his own Sri Lankan passport. 

40                  The RRT said that even if, as the applicant claimed, he had returned to Sri Lanka in March 1995 for pressing family reasons and on the basis that there had been peace talks in progress,

“refugees are by definition people who, owing to their well-founded fear of being persecuted, are unable to return to their country of nationality, however compelling the personal reasons may be”. 

41                  The RRT member did not accept that the applicant had provided accommodation to “Kannan”, nor that Kannan was arrested, tortured and forced to admit he was an LTTE member.  The member rejected the applicant’s claims that he secured Kannan’s release with the assistance of the senior police officer, Mr Gunathilaka, and that the applicant’s business premises were thereafter checked by the police weekly.  The member did not believe that the applicant had been arrested in May 1993, tortured and accused of being an LTTE member, nor that the business was raided after the applicant returned from India in March 1995. 

42                  In short, the RRT did not believe that the applicant was wanted by the authorities and thought it was their lack of interest in him that explained why he was able to pass through Colombo airport on seven occasions using his own passport. 

43                  The RRT rejected the submission that the applicant was at risk of being detained in the arbitrary security checks.  The applicant himself stated that he spoke Sinhalese, that his identity card showed he had been born in Badulla, and that he was a resident of Colombo.

44                  For the above reasons the RRT concluded that the applicant was not a refugee to whom Australia had protection obligations under the Convention, and was therefore not eligible for a protection visa.

REASONING

45                  The grounds specified in s 476(1) of the Act on which the applicant relies are those specified in paras (a), (e) and (g).  Those grounds are as follows:

“(a)     that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed”;

“(e)     that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision”;

“(g)     that there was no evidence or other material to justify the making of the decision.”

46                  Section 476(4) provides that the ground specified in s 476(1)(g) is not to be taken to have been made out unless:

“(a)     the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or

(b)       the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.”

47                  A difficulty which I found with the applicant’s submissions was that the applicant did not make a satisfactory attempt to show that his complaints about the RRT’s decision fell within the terms of s 476. 

48                  The applicant’s major complaint related to the significance that the RRT gave to the applicant’s several departures from and re-entries into Sri Lanka, all on his own Sri Lankan passport.  This suggested to the RRT that the applicant did not have the fear of persecution that he professed.  For the RRT, the applicant’s delay in applying for a protection visa after arriving in Australia and the fact, acknowledged by him, that his name was not on a “wanted list” in Sri Lanka, pointed in the same direction.  The applicant submits, however, that the RRT erred in thinking that these matters showed a lack of subjective fear of persecution.  The applicant submits, for example, that a person’s name may not be on a “wanted list”, yet the person may be sought by the authorities at Sri Lanka’s points of exit and entry.  According to the submission, his evidence that he needed the secret assistance of officials in order to leave and re-enter the country should have been accepted, and would have been accepted, if the RRT had understood the evidence correctly.

49                  It seems to me that the applicant’s complaint just adumbrated is not within any of the grounds of review mentioned in s 476(1) of the Act.  Rather, it is a complaint that the RRT made an error of fact.  The applicant submits that the RRT should have viewed the facts differently. But it was open to the RRT to put the construction which it did upon the evidence before it.

50                  The applicant next contends that the RRT failed to take into account the facts that when he returned to Sri Lanka in March 1995, the Government had changed, that there had been a cease-fire with the LTTE and that peace talks had been taking place.  He points out that evidence of these matters was not rejected by the RRT. But in fact the RRT acknowledged expressly that the applicant had given evidence of these matters, and continued:

“However the [a]pplicant’s evidence that he nevertheless stayed with his friend rather than with his parents, and that he had his friend arrange for his safe passage through the airport, suggests that he did not believe that the changed circumstances in Sri Lanka had removed his fear of being persecuted if he returned there.  Nevertheless he made the trip.”

What the RRT was saying was that the applicant was putting forward two inconsistent constructions on events: one was that in March 1995 he had not been afraid to return to Sri Lanka because of the changes mentioned; the other was that he had been too afraid to pass through the airport and re-enter Sri Lankan society in the ordinary way.  Again, the applicant’s complaint is basically one about the construction which the RRT placed on the facts.  I do not think that any ground allowed by s 476(1) is made out in this respect.

51                  Next, the applicant seizes upon the second sentence (set out earlier) in the following passage relating to the applicant’s return to Sri Lanka in March 1995 which immediately follows the passage just discussed:

“Nevertheless he made the trip.  I accept that he may have had strong personal reasons for doing so, in that he wanted to assist his parents to leave and for various reasons none of his siblings were able or willing to assist in this regard.  However the fact remains that refugees are by definition people who, owing to their well-founded fear of being persecuted, are unable to return to their country of nationality, however compelling the personal reasons may be.”

The applicant submits that the last sentence quoted exposes a misunderstanding on the RRT member’s part of the Convention definition of “refugee”.

52                  I agree with counsel for the applicant that on its face, the last sentence does suggest a misunderstanding of the Convention definition.  For one thing, it fails to take into account unwillingness as an alternative to inability.  For another thing, it lays down a rule, not required by the Convention definition, that any return to the country of nationality will necessarily be inconsistent with the existence of subjective fear of the kind described in the definition.  But one can imagine a person unwilling to avail himself or herself of the protection of the country of nationality owing to a well-founded fear of being persecuted for a Convention reason, yet who, because of, for example, the approaching death in that country of a close family member, might take the risk, perhaps with the assistance of complicit officials, of returning home for a last fleeting visit to that relative.  It would not necessarily follow that the person could not satisfy the Convention definition.  The RRT member’s formulation in the passage quoted is narrower than that Convention definition.

53                  I think that the true import of the passage set out was that, for the RRT member, notwithstanding the “compelling ... personal reasons” for the applicant’s return to Sri Lanka in March 1995, the fact that he did return pointed to an absence of a fear of the kind and degree required by the Convention definition.  In other words, the RRT member thought that if the applicant had left Sri Lanka in February 1994 in fear of persecution as he said, he would not have returned in March 1995 even to help his parents leave Sri Lanka.  That was a view that was open to the RRT member to take.  I am not at liberty to review on the merits.

54                  In any event, I do not think that the erroneous sentence infected the decision-making process.  The RRT member relied, not only on the return to Sri Lanka from Australia in March 1995, but on no less than seven occasions of departure or return on the applicant’s own passport.

55                  Next, the applicant submits that the RRT erred in the reliance which it placed upon Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347.  The RRT referred to the fact that in that case Heerey J observed that it is legitimate to take into account an applicant’s delay in applying for a protection visa in assessing the genuineness, or at least the depth, of the claimed fear of persecution.  The applicant submits that the RRT erred by failing to appreciate that his Honour was explaining the position in the context of the special facts of the case before him and by failing to distinguish between the facts of that case and those of this case.  However, a fair reading of the RRT’s Reasons for Decision does not indicate that the member understood that in all cases, as a matter of law, delay in applying for a protection visa is evidence of an absence of a subjective fear of persecution.  Indeed, after referring to Selvadurai, the RRT went on to refer, not only to the applicant’s delay in applying for a protection visa, but to that circumstance combined with his departures from and returns to Sri Lanka as pointing to absence of fear.

56                  The applicant next submits that the RRT should not have found that he had “fabricated” the account of Kannan’s accommodation, arrest, torture and confession; the applicant’s having secured the release of Kannan with the assistance of a senior police officer; the weekly checking of the applicant’s business premises by police officers who demanded items of electrical equipment; the arrest, torture, accusation and interrogation of the applicant in May 1993; and virtually every other aspect of persecution which the applicant alleged he had suffered.  The applicant does not point to a s 476(1) ground from which the finding of fabrication arises or which it evidences.

57                  The applicant also submits that a finding of fabrication is not necessarily determinative of an application for a protection visa.  But where, as here, the RRT rejected the entire case of past persecution as a concoction, while it would be possible for the person whose evidence has been so rejected nonetheless to have a genuine fear of persecution, the wholesale rejection of his or her evidence as to the past is properly to be taken into account in assessing the credibility to be given to his or her testimony as to present fear.

58                  The applicant next submits that the RRT failed to observe a procedure which it was required by the Act to observe; cf s 476(1)(a).  He complains that it did not put adverse matters to him and so give him an opportunity to present further evidence in relation to them.  While it may be that the RRT did not, as it were, confront the applicant at the hearing with the detailed course of reasoning by which it ultimately decided against him, I do not think that it was required to do so.  In any event, the so-called “procedure” on which the applicant relies is apparently the requirement of s 420 that the RRT must pursue the objective of providing a mechanism of review that is fair and just and must act according to substantial justice and the merits of the case.  But the requirements laid down by s 420 are not “procedures” for the purpose of s 476(1)(a): Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577.  Moreover, in Abebe v Commonwealth of Australia (1999) 162 ALR 1, Gummow and Hayne JJ observed in relation to a submission similar to the present one as follows:

“The want of procedural fairness was said to lie in the tribunal not putting to the applicant any suggestion that her story of detention and rape was untrue.  Framed in this way, the submission may, perhaps, assume that proceedings before the tribunal are adversarial rather than inquisitorial or that in some way the tribunal is in the position of a contradictor of a case being made by the applicant.  Such assumptions, if made, would be wrong.  The proceedings before the tribunal are inquisitorial and the tribunal is not in the position of a contradictor.  It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason.  The tribunal must then decide whether that claim is made out.” (p. 51 para 187)

For all these reasons I do not think that the ground of failure to observe a required procedure is made out.

59                  The applicant next submits in terms of s 476(1)(g) that there was no evidence or other material to justify the making of the decision in that the decision-maker based the decision on the existence of a particular fact, and that fact did not exist.  But the applicant has not shown that any fact on which the RRT based its decision did not exist. 

60                  Finally, the applicant referred to what he said was the RRT’s erroneous interpretation and application of certain data it obtained from a report on a visit to Sri Lanka by the Danish Immigration Service in 1997, entitled “Report on the fact-finding mission to Sri Lanka, 21 February to 7 March 1997” (Copenhagen, April 1997).  The RRT member said that he had pointed out to the applicant that if he was a “wanted person”, he could have departed Sri Lanka only with the complicity of an NIB departure control officer, yet the Danish Immigration Service report recorded that no cases of the bribery of such officers had come to light in the period of six years preceding the visit of that Service in 1997.  The applicant told the RRT that his case was not that his name was on a “wanted list”. The RRT member said that according to the Danish Immigration Service report there have been instances of bribery of airline staff and immigration authorities taking bribes, but in association with “false papers”.  What clearly impressed the RRT was that the applicant’s various exits and arrivals had all been on his own Sri Lankan passport.  I do not see that the RRT made an error of a kind referred to in s 476(1) in the use it made in the present respect of the Danish Immigration Service report.

61                  The applicant also referred to a passage in that report to the effect that the Sri Lankan Government and the LTTE resumed peace talks in January 1995 which resulted in a cessation of hostilities that prevailed until April 1995.  But the RRT’s reasoning was not inconsistent with the absence of hostilities in that period.  As I observed earlier in relation to the particular matter of the applicant’s return to Sri Lanka in March 1995, the RRT relied on the inconsistency between two accounts which the applicant gave of his state of mind at that time: fearful and not fearful.  The RRT’s assessment was of factual material.

CONCLUSION

62                  For the above reasons, the Court will order that:

1.         the application be dismissed; and

2.         the applicant pay the respondent’s costs.

Associate:

Dated:              11 August 1999