FEDERAL COURT OF AUSTRALIA

NNN v Minister for Immigration and Multicultural Affairs [1999] FCA 1290

IMMIGRATION – No question of principle.

Migration Act 1958 (Cth)

Abdalla v Minister for Immigration & Multicultural Affairs (1998) 51 ALD 11, applied

Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212, applied

Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437, applied

NNN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 1000 OF 1998

MADGWICK

15 SEPTEMBER 1999

SYDNEY

THE COURT ORDERS THAT:

1.                  The proceedings are to be re-entitled so as to show the applicant only as "NNN" and the applicant is only to be so referred to.

2.                  The application is dismissed.

3.                  The applicant is to 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

MADGWICK J:

1                     This is a case of Tamils (it is convenient to call them the “applicants,” though only one of them is the applicant) from Sri Lanka who, having been refused a visa founded on their claim to have refugee status by the Minister's delegate, were also unsuccessful in their application to the Refugee Review Tribunal for a review of that decision.  They now seek judicial review of the Refugee Review Tribunal's decision on the very narrow grounds upon which, in this Court, such review may be granted.

Background

2                     The personal characteristics of the applicants are sufficiently different from those of other Sri Lankan Tamils that, if there is any risk to them from having sought refugee status here, the mere suppression of their names (which I will order) may not suffice to protect them.  I do not therefore set out here the facts of the matter, as found by the Tribunal.

3                     The applicants come from the Jaffna Peninsula.  They claimed that they feared persecution on account of imputed political opinion as supposed LTTE ("Tamil Tiger") supporters.  In 1996 they relocated to Colombo.  They were reduced to poverty there (though they had some means) and, on four occasions in four months, their flat was raided by police and they were told that they should leave Colombo.

4                     The Tribunal did not accept that the Sri Lankan authorities had attributed a political opinion to the applicants.  Those authorities, the Tribunal said,

"have had ample time and opportunity to harm the applicants as a result of their association with government opponents, or for any other reasons, but have not done so.  It is reasonable to conclude that the Sri Lankan authorities do not intend to harm the Applicants".

Further, the Tribunal said that it was satisfied that "it would be reasonable for the applicants to return to Colombo if it is too dangerous for them to return to Jaffna ".

The criticisms of the Tribunal's decision

5                     The amended application to this Court asserts the following grounds for judicial review:

"1.       There was no evidence or other material to justify the making of the decision.

            Particulars

a)        The Tribunal based the decision on an implied finding of fact that the applicant's questioning about an adopted son who had joined the Liberation Tigers of Tamil Eelam (LTTE) was by the Sri Lankan Security Forces, and that fact did not exist.

b)        The Tribunal based its decision on a finding of fact that the applicant and his spouse had spent, ‘a bit less than a year in Colombo’ and that fact did not exist.

2.                 The Tribunal failed to observe procedures required by the Act to be observed, in that it failed to hold a hearing as contemplated by s 425(1) of the Act.

Particular

                   The Tribunal failed to enquire into an issue essential to the case, namely whether the Sri Lankan security forces or the Indian Peace Keeping Force questioned the applicant about this adopted son in 1987 and 1988.

3.                 The decision was not authorised by the Act.

Particular

                   The Tribunal failed to enquire into an issue essential to the case, namely whether the Sri Lankan security forces or the Indian Peace Keeping Force questioned the applicant about this adopted son in 1987 and 1988.

4.                 The Tribunal erred in its interpretation of the law, and the application of the law to the facts as found.

            Particulars

a)      Error in the interpretation and application of the law as to internal relocation.

b)      The Tribunal failed to consider whether emotional harm caused by the behaviour of the Sri Lankan police in Colombo may amount to persecution.

c)      The Tribunal failed to consider whether the applicant faces a well founded fear of being the victim of extortion at the hands of the police in Colombo, and if so whether such [extortion] could amount to persecution for a Convention reason."

6                     The applicants' solicitor Mr Karp really pressed three matters.  One was that the Tribunal had overlooked the complexities inherent in the judgment of whether internal relocation is a reasonable option in all the circumstances for a persecuted person.  Another was that the Tribunal member, through oversight, had considerably overstated the period that the applicants had been in Colombo, so that he had not really considered their claims.  The third was that the Tribunal member had jumped to an unjustified conclusion that the Sri Lankan authorities, rather than the erstwhile Indian Peace Keeping Force, had questioned a person very close to the applicants and had used that assumption as an important factor in his reasoning that, as no serious harm had come to the applicants in a long time, there was little chance that that would now occur at the hands of the Sri Lankan authorities or forces sympathetic to them.

Internal relocation

7                     It is well-settled that a fear of persecution will not be well-founded if the persecution can be avoided by the putative refugee's residing in a safe part of the country of nationality.  However, the relocation must be a "reasonable" option and the "practical realities" and the extent of any association between the applicant and a suggested place of relocation ought to be carefully considered:  see for example Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 at 442, and Abdalla v Minister for Immigration & Multicultural Affairs (1998) 51 ALD 11.

8                     The Tribunal applied the correct, overall test:  "It would be reasonable for the Applicants to return to Colombo".  However, the suggestion is that the inquiry was artificially limited to matters of their safety and did not take into account matters to do with their health and their means.  While all the circumstances must be taken into account, it is to be remembered that applicants for refugee status are asking another country to suspend its usual rules for the control of immigration and to admit them on account of reasonably held fears for their safety.  Safety is clearly one of the prime factors to be taken into account.  The essence of the Tribunal's position is that the applicants had lived for some months in Colombo without coming to what the Tribunal member regarded as serious harm.  It is clear from the transcript of the proceedings that the Tribunal member had certain background knowledge of the situation, which he invited the applicants to comment on.  The transcript shows that the Member indicated why he was not moved by considerations of the applicants' health or means. 

9                     The sufficiency of the reasons must be judged in context.  The context can include the course of the proceedings.  I am not persuaded that it is fair to see the Tribunal as having viewed the matter too narrowly.  The absence of an express statement that the Tribunal member did not take into account their health and means does not mean that he did not in fact do so.  Among other things, these applicants were, for reasons that I ought not, in their own interests, set out, likely to excite emotions of compassion.  The Tribunal is not procedurally obliged under s 430 of the Migration Act 1958 (Cth) to refer to every consideration that fails to weigh with it.  Indeed it is not a ground of review in this Court that, as a matter of substance and not merely of what is recorded, the Tribunal might have failed to take into account a relevant consideration.  Neither health nor means were, in the circumstances of this case, crucial facts on which the final determination must turn (see Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 220-1): it was not shown that their health and means would be in any better condition anywhere else in Sri Lanka than in Colombo.  The Tribunal member noted, in the part of his reasons containing his conclusion on this point, that the applicants did not speak Singhalese but that there were large numbers of Tamils resident in Colombo.  This shows that safety alone was not regarded as the determinant of reasonableness.

Overstatement of period of the applicants' residence in Colombo

10                  The preferable view, as Mr Karp submitted, is that the Tribunal made a mistake in thinking that the applicants had "lived in Colombo for a bit less than a year before coming to Australia".  They had lived there, in fact, for about four months.  However, it was not a crucial point whether they had lived there for four or 11½ months:  what was important was that, for an appreciable period, while they lived in Colombo they had come to no serious harm there.  In the circumstances of this case, the slip does not mean that the real basis of the applicants' case was not considered.

The identity of the interrogators of a person close to the applicants

11                  The argument here is, with respect, byzantine.  It runs thus:  the Tribunal assumed without warrant that, when a person close to the applicant, "RRR" as the Tribunal called him, was questioned about his suspected LTTE affiliations, the interrogators were agents of the Singhalese government, rather than Indians from the Peacekeeping Force.  The Tribunal then relied on the fact that the of Singhalese interrogation of RRR, had occurred without harm being inflicted upon the applicant, alone, to found the conclusion that an absence of harm in the past gave confidence that there would be none in future.  Thus, it was argued, there was reliance on a crucial fact that did not exist and a breach of the duty to enquire further before making an adverse finding to the applicants. 

12                  This, in my opinion, is fanciful.  Whether RRR's interlocutors were Indian or Singhalese, they were in control at the time and were engaged in a deadly struggle with the LTTE.  Then and since, the applicants came to no serious harm for any Convention reason.  The assumption was, again I agree with Mr Karp, unwarranted.  But it was immaterial.  No reviewable legal error is shown.

Conclusion

13                  This is, nevertheless, a somewhat sad case, but regrettably there is nothing this Court can do about it.  The application must be dismissed with costs.

Associate:

Dated:              15 September 1999