FEDERAL COURT OF AUSTRALIA

Arudselvan v Minister for Immigration and Multicultural Affairs

[1999] FCA 1726

MIGRATION – Refugee Review Tribunal – application for protection visa – whether RRT must address every factual intention or argument on its written reasons

Chan Yee Kin v Minister (1989) 169 CLR 379 mentioned

AJIT PRABAHARAN ARUDSELVAN v MINISTER FOR IMIGRATION AND MULTICULTURAL AFFAIRS

NO. N 922 OF 1999

FRENCH, HEEREY AND LINDGREN JJ

12 NOVEMBER 1999

SYDNEY

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay the respondent’s costs, including reserved costs.

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

REASONS FOR JUDGMENT

THE COURT:

1                     The appellant is a Sri Lankan citizen of Tamil ethnicity.  He arrived in Australia as a visitor in July 1996 followed by his parents in August.  They all applied for protection visas on 11 October 1996.  On 10 September 1997 a delegate of the respondent refused their application.  The Refugee Review Tribunal confirmed that decision on 20 November 1998.  Before the delegate and the RRT, the appellant claimed that he satisfied the Convention definition of refugee in that he had a well founded fear of persecution for reasons of his race and/or his political opinion.

2                     The factual claims made by the appellant and the evidence said to support them can be summarised as follows:

(a)        The appellant was born in Colombo in 1971 but following the anti-Tamil riots in September 1983 he was sent with his brother and sister to a boarding school in Jaffna, staying there until January 1985.  While in Jaffna his school hostel was raided by the army and he was detained for three days, assaulted and abused;

(b)        Between his return to Colombo in January 1985 and the beginning of 1993 the police would regularly check Tamil houses with the result that he and his brother were often detained for questioning whenever there was an incident in Jaffna or Colombo.  They were abused but not assaulted;

(c)        Following the assassination of President Premadasa on 11 May 1993, the appellant and his brother were arrested and, with other Tamil youths, detained in custody for three days and tortured by police;

(d)        After the LTTE attacked the oil storage tanks at Kolonnawa in Colombo in October 1995 the appellant was taken in for questioning again.  He was questioned about any involvement he had with the LTTE and released after a day as a result of his employer bribing the police;

(e)        After the bombing of the Central Bank in Colombo on 31 January 1996 the appellant was again detained.  A friend and former tutor of the appellant, who worked at the Central Bank and for whom the appellant had arranged lodgings with a neighbour, had not reported for work the day after the bombing.  There was a police raid and the appellant and his father were taken into custody at the Wellawatte police station where the appellant was assaulted with fists and boots and his father was also assaulted.  They were held for three days after which a Muslim neighbour bribed a senior police officer to secure their release on condition they report to the police every day;

(f)         When the appellant went to report to the police station on 10 February 1996 he was questioned about his former tutor.  When he said he did not know anything he was kicked, punched and continually slapped.  He was taken to a prison.  He was released on 23 May 1996 after he arranged to bribe police and court officials;

(g)        On 24 June 1996 plain clothes police officers visited a neighbour and questioned him about the appellant.  The neighbour warned the appellant’s family that he suspected the appellant would be taken into custody again concerning the bombing.  The appellant and his family decided to leave their home immediately and go into hiding.  Through the assistance of an “agent” they were able to leave the country by bribing customs and immigration officials.  They travelled on documents in their own names.

The RRT decision

3                     The RRT accepted that the appellant may have been arrested, assaulted and abused by the army while he was in Jaffna between September 1983 and January 1985.  However, it rejected his assertions that because he was a Tamil he was repeatedly taken in for questioning between 1983 and 1995 and that he was arrested on two occasions in 1996 in connection with the Central Bank bombing.  The RRT also did not accept his evidence concerning the circumstances in which he left Sri Lanka.  The RRT concluded that the appellant would have “few problems if he returns to Colombo”.  In summary, the RRT rejected the entirety of the claims made by the appellant, other than those related to the period 1983 to 1985, with the result there was no basis upon which it could find that he had a well founded fear of prosecution, at least insofar as he would be required to return to Colombo.

4                     The RRT gave a number of reasons as to why it rejected the factual claims of the appellant.  First, it was not impressed with his demeanour as a witness.  Second, and more importantly, it considered that his account was inconsistent with information concerning the country situation in Sri Lanka.  Insofar as the appellant claimed that he was repeatedly the subject of detention questioning in the period 1985 to 1993, the RRT considered that was broadly inconsistent with the material before it, including Department of Foreign Affairs and Trade (DFAT) cables, which suggested that such action was more concerned with young Tamils from the north or east of Sri Lanka rather than a person who had resided in Colombo for a significant period of time and possessed identification cards consistent with that fact.

5                     The RRT relied in particular on a Danish Immigration Service report to the effect that there had been no reports of departure control officers at Colombo airport taking bribes for some six years.  Since the appellant left Sri Lanka legally, travelling on a passport in his own name, it was implausible that he had, as he claimed, escaped from prison by paying bribes and was wanted by authorities on suspicion of complicity in the Central Bank bombing or other LTTE terrorism.

The proceedings before the primary judge

6                     On behalf of the appellant, it was submitted before Katz J that the RRT had erred in failing to give reasons for preferring the evidentiary material upon which it relied to form conclusions concerning the situation of Tamils in Colombo as opposed to what was said to be contrary evidence and submissions.  After analysing this alleged contrary material, Katz J concluded that it fell into one or other of three categories, namely material of little persuasive force in support of the appellant’s assertions, irrelevant material or even material of some persuasive force against assertions.  Accordingly, leaving aside any question concerning the proper operations of s 430 of the Act, Katz J rejected this ground of challenge.

7                     It was further submitted before Katz J that the RRT based its decision on the existence of a fact in respect of which there was no evidence and it did not exist (s 476(1)(d) and 476(4)(b)), insofar as it sought to draw certain conclusions concerning the circumstances of the appellant’s departure from the airport in Colombo.  Katz J concluded that none of the prerequisites to the ground of review specified in s 476(1)(g) and s 476(4)(b) of the Act had been made out.

8                     Finally, the RRT decision was challenged before Katz J on the basis that, in its “Findings and Reasons” section of its decision, the RRT did not specifically advert to two documents from the DFAT dated February and April 1998 respectively which were said to state that Tamils with identity cards showing Colombo as their place of birth and residence were at greater risk of persecution than as ultimately found by the RRT.  Katz J noted that both documents were referred to by the RRT elsewhere in its reasons and that there was nothing in those which contradicted the relevant statements in the DFAT report dated January 1997 which had been referred to by the RRT in its findings and reasons section.  Accordingly, Katz J did not consider that this complaint was a basis for setting aside the RRT decision.

Argument on appeal to this Court

9                     Counsel for the appellant argued that the “real chance” test as expounded by the High Court in Chan Yee Kin v Minister (1989) 169 CLR 379had not been applied.  In particular he said that in relying on the Danish report the Tribunal had not “excluded other possibilities”, for example:

(a)        Information about the appellant may not have reached the officials at the airport as a result of administrative communication breakdown;

(b)        Officials may have been on the alert only for higher level suspects;

(c)        Information may not have been passed on because the appellant was not arrested for a “genuine reason” but merely to extort a bribe; or

(d)        The Danish report itself was unreliable because it depended in part on information from the very persons suspected of bribery.

10                  However, such arguments do no more than raise questions of fact.  The weight the Tribunal gave to the Danish report was exclusively within its province as an administrative fact finder as part of its function in determining whether the appellant faced a real chance of persecution for a Convention reason.

11                  Counsel then argued that there was a failure to comply with s 430(1)(b), (c) and (d) of the Act.  Section 430(1) provides:

”Where the Tribunal makes its decision on a review the Tribunal must prepare a written statement that:

(a)        sets out the decision of the Tribunal on the review; and

(b)        sets out the reasons for the decision; and

(c)        sets out the findings on any material question of fact; and

(d)        refers to the evidence or any other material on which the findings of fact were based.

12                  It was said that the Tribunal should have addressed the “main issues raised by the appellant” and was under an obligation for example to “deal with” the arguments in relation to the Danish report mentioned above.  This submission, in our view, misconceives the function of s 430(1).  In giving written reasons the Tribunal is under no legal obligation to deal with every factual contention or argument raised by an applicant.  For example, in the present case the appellant's solicitor submitted to the Tribunal a 16 page submission containing references to numerous newspaper extracts and other material concerning conditions in Sri Lanka.  There was no legal obligation on the Tribunal, in giving its written reasons, to analyse such material and give reasons for not accepting any of it that might be thought inconsistent with the conclusions the Tribunal reached.

13                  The proper performance of the Tribunal's obligation under s 430(1)(c) and (d) can be illustrated by the following passage from the Tribunal's reasons:

“In the light of the information available to me (specifically the statement from the Danish Immigration Service report at page 66 quoted above) I consider that it is implausible for the applicant to claim as he does that he believed that his name was on the wanted list at the airport but that he was able to leave Sri Lanka travelling on his own passport because the agent who arranged his travel bribed the relevant officials.  I consider that the fact that the applicant left Sri Lanka legally travelling on his own passport makes it implausible that he escaped from Wallawatta Prison by paying bribes in the manner he has suggested and that he was wanted by the authorities in Sri Lanka on suspicion of complicity in the Central Bank bombing or other acts of terrorism perpetrated by the LTTE.”

14                  The Tribunal there makes a finding on a material question of fact, namely whether the appellant left Sri Lanka because he was wanted by authorities in suspicion of complicity in the bombing and refers to the evidence on which that finding is based, namely the Danish report.

15                  Finally counsel relied on the "no evidence ground".  Section 476(1)(g) provides:

“Subject to subsection (2) application may be made for review by the Federal Court of a judicially reviewable decision on any one or more of the following grounds:

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

Section 476(4)(b) provides:

“The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

(a)        ...

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

16                  It was said that the assumption that a person who travels from a country on his own passport could not be wanted by the authorities was not a “concrete fact”.  In treating it as such the Tribunal relied on a fact that did not exist.  It is plain in our view, however, that the Tribunal did no more than treat the circumstances of the appellant's departure from Sri Lanka as a matter bearing on the plausibility or otherwise of his case.  This was a matter purely within its fact finding function. 

17                  The appeal will be dismissed with costs including reserved costs.

Associate:

Dated: