FEDERAL COURT OF AUSTRALIA

Sabaratnasingam v Minister for Immigration & Multicultural Affairs

[2000] FCA 261

MIGRATION - Refugees Convention - appeal from decision dismissing application for review of decision of the Refugee Review Tribunal - 'no evidence' ground - particular facts alleged not to exist were not facts upon which Tribunal based decision - so-called "internal relocation" - no finding of well-founded fear of persecution in part of country of nationality - question of reasonableness of relocation thus not raised

Migration Act 1958 s 476(1)(g)

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

Gersten v Minister for Immigration & Multicultural Affairs (2000) 169 ALR 167 considered.

Kanagasabai v Minister for Immigration and Multicultural Affairs [1999] FCA 205 doubted.

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 applied.

Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411 referred to.

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 referred to.

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

Waterford v The Commonwealth (1987) 163 CLR 54, referred to.

Arupillai Sabaratnasingam v Minister for Immigration & Multicultural Affairs

N 1138 of 1999

WHITLAM, LEHANE & GYLES JJ

SYDNEY

10 MARCH 2000

On appeal from a Judge of the Federal Court of Australia

THE COURT ORDERS THAT:

1.                  The appeal is dismissed.

2.         The appellant pay the costs of the respondent.

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

On appeal from a Judge of the Federal Court of Australia

REASONS FOR JUDGMENT

THE COURTWHITLAM J:

1                     This is an appeal from a judgment of Madgwick J ([1999] FCA 1290) dismissing an application under s 476 of the Migration Act 1958 ("the Act") for review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 26 August 1998.  The Tribunal affirmed the decision made by a delegate of the respondent refusing to grant the appellant and his wife protection visas.  It was not satisfied that they were refugees as defined by Art 1A(2) of the Refugees Convention as amended by the Refugees Protocol (together "the Convention").  Specifically, the Tribunal found that neither the appellant nor his wife had a well-founded fear of persecution.

2                     The appellant was born on 21 November 1919.  His wife was born on 16 July 1931.  They are Sri Lankan nationals, who arrived in Australia on 13 June 1996 and applied for protection visas on 16 August 1996.

3                     The statement prepared by the Tribunal under s 430(1) of the Act is quite short.  After discussing the Convention definition of refugee, the Tribunal described (at pp 3-4) the claims made by the appellant and his wife as follows:

"The Applicants are Sri Lankan citizens who arrived in Australia in 1996.  They claim that, if they return to Sri Lanka, they are at risk of harm from the Sri Lankan army or security forces because of their political opinions or political opinions imputed to them because they are Tamils and have associated with people who are, or are perceived to be political opponents of the government.

The Applicants taught in government schools in Sri Lanka for many years.  They retired on pensions in the late 1970's.  They are Tamils, and lived in Jaffna until 1995.  Their only son is in Australia.  They have a daughter in Jaffna and one in the United Kingdom.

The Applicants do not believe that they can return to Jaffna.  Their house was occupied by the Sri Lankan army.  It was later destroyed.  They fear they will be targeted as government opponents.  They raised a young man RRRR, who joined the LTTE [Liberation Tigers of Tamil Eelam] in 1986.  The Applicants gave money to the LTTE.  The Applicants were questioned about RRRR in 1987 and 1988.  They did not come to any harm.  They were frightened that they would come to harm but they did not.

The Applicants taught many young Tamils who have joined all the anti-government organisations.  The Applicants are concerned that they may suffer because of this, as they may have the anti-government opinions of their former students imputed to them.

The Applicants lived in Colombo for a bit less than a year before coming to Australia.  They had valid passes to travel to Colombo, but were harassed by the police and army there.  The army conducted search operations in the Tamil areas at night.  They would conduct armed raids on houses at two am, demanding to see Identity Cards.  The Applicants were subject to such raids four times in four months.  They were not harmed, nor taken to the police station or to army camps.

The Applicants state that they were threatened by soldiers who told them to leave Colombo as soon as possible.

The Applicants do not believe that it is reasonable or safe for them to return to Colombo.  They may be harmed by the police or army.  They do not speak Singhalese.  The Applicant's [sic] adviser stated that she herself was harassed in Colombo because she is Tamil, even though she is an Australian citizen.

The Tribunal notes that the Applicants have come to no harm in Colombo in the time they spent there. …" (Emphasis supplied.)

4                     The Tribunal then summarized certain evidence before it relating to the detention of Tamils in Colombo, in the course of which it stated (at p 5):

"The Danish Immigration Service noted that one source suggested that many Tamils were arrested and detained simply for the purpose of blackmailing their families into paying bribes for their release (page 21) and the Australian Department of Foreign Affairs and Trade has indicated that bribes in the range of 7,000 to 50,000 rupees are plausible in this context (DFAT cable CL500233, dated 20 September 1997, CX27833)."

5                     The Tribunal concluded by stating (at pp 6-7) its findings as follows:

"The Tribunal notes that the Applicants have the correct documentation to travel to Colombo, and while required to produce their Identity Cards on at least four occasions during searches of the Tamil areas by the authorities, were not arrested or taken to the police station for questioning, nor did they come to any harm in these raids.

The Tribunal notes the Applicant's [sic] concerns regarding RRRR and their former students.  The Tribunal notes that the Applicants [sic] evidence that they were questioned about RRRR without coming to harm, and that their teaching careers ended many years ago and yet they have come to no harm as a result of their contact with former students or students in all that time.

The Tribunal is not satisfied that the authorities in Sri Lanka have attributed a political opinion to the Applicants as a result of the Applicants [sic] past associations or for any other reason.  The Tribunal notes that the Applicants are former government school teachers, still in receipt of government pensions arising out of that service.

The Tribunal notes that the Applicants do not speak Singhalese, but notes that there are large numbers of Tamils resident in Colombo.  The Tribunal is 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 Tribunal is not satisfied, on the evidence available, that there is a real chance that the Applicants will come to more serious harm in the future that [sic] they have in the past.  While there is evidence that some Tamils in Sri Lanka face a risk of persecution, the Tribunal notes that the Applicants are elderly government pensioners, and that the Sri Lankan authorities have not harmed them in the past.  The Sri Lankan authorities 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.

The Tribunal is not satisfied that there is a real chance that the Applicants will suffer persecution in the future, should they return to Sri Lanka.

The Tribunal is not satisfied that any fear of persecution on the part of the Applicants is well-founded." (Emphasis supplied.)

6                     The amended application to the Court relied on several grounds specified in s 476(1) of the Act.  However, at first instance the appellant's solicitor apparently pressed only three matters and, for the purposes of this appeal, it is only necessary to consider the following grounds:

"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.

…

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 extotion [sic] could amount to persecution for a Convention reason."

7                     Madgwick J dealt first (at [7] - [9]) with so-called "internal relocation".  His Honour held that the Tribunal applied "the correct, overall test" in finding that "it would be reasonable for the Applicants to return to Colombo".  He rejected a submission that the Tribunal artificially limited its inquiry to matters relating to the safety of the appellant and his wife and that it did not take into account their health and financial means.

8                     So far as the alleged overstatement of the period of residence in Colombo was concerned, Madgwick J agreed that the Tribunal made a mistake and said (at [10]):

"… 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."

9                     Madgwick J described as "byzantine" (at [11]) the argument of the appellant's solicitor relating to the identity of those who questioned his client about the adopted son RRRR.  Although his Honour agreed (at [12]) that an assumption that Sri Lankan authorities were the interrogators was unwarranted, he held that such an assumption was immaterial and that no reviewable legal error was shown.

10                  The so-called "no evidence" ground is a convenient point to commence consideration of the appeal.  The ground specified in s 476(1)(g) of the Act has been explained in Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 by reference to the corresponding provision in the Administrative Decisions (Judicial Review) Act 1977.  It is also to be understood  against the background that a wrong or illogical finding of fact is not a ground of review (Waterford v Commonwealth (1987) 163 CLR 54, 77; Minister for Immigration & Multicultural Affairs v Epeabaka (1999) 84 FCR 411, 421).  In the present case the initial question is: are the particular facts alleged in paragraphs (a) and (b) of ground 1 in the amended application for review findings upon which the Tribunal based its decision?

11                  As far as paragraph (a) is concerned, we areI am unable to discern in the Tribunal's statement any such "implied" finding of fact as that alleged by the appellant.  However, even if it be the case, as Madgwick J apparently accepted, that the assumption of such a fact is implicit in the Tribunal's statement, then it is of no consequence because, as his Honour said, the critical fact is that no harm had been inflicted on the appellant or his wife for a Convention reason following the questioning in 1987 and1998 1988.  (Before Madgwick J affidavits touching on the identity of the appellant's interrogators were read by his solicitor.  In his reasons for judgment his Honour did not refer to this evidence which was plainly irrelevant.  Proof of the additional requirement imposed by s 476(4)(b) of the Act only arises in circumstances where the ground specified in s 476(1)(g) is otherwise made out: Curragh Queensland Mining Ltd v Daniel per Black CJ at 223-224.)

12                  The fact alleged in paragraph (b) of ground 1 relates to the way in which the Tribunal misstated the evidence before it about how long the appellant and his wife lived in Colombo before coming to Australia.  We Idoubt that such reference constitutes a finding of fact by the Tribunal for the purposes of s 476(1) of the Act.  The relevant finding occurs later on in the Tribunal's statement where it "notes" (at p 6) that the appellant did not come to "any harm" in the four raids which took place in the period of four months.  Those raids constituted the events during his time in Colombo which the appellant claimed amounted to persecution.  We I agree with Madgwick J that, on any view, the earlier misstatement by the Tribunal of the evidence about how long the appellant and his wife lived in Colombo was not critical to the making of its decision.  The ground under s 476(1)(g) of the Act was thus not made out on either of the bases alleged.

13                  Turning now to the alleged error of law in ground 4, we begin with the so-called "law as to internal relocation".  It should be noted that the Tribunal did not purport, in terms, to deal with such a question.  Unlike Madgwick J, we Ido not read the sentence highlighted in the final excerpt from the Tribunal's statement as addressing the issue of the reasonableness of relocation.  That issue was explained in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437.  Reasonableness of relocation only arises where a person has a well-founded fear of persecution in relation to a part of the country of nationality: see per Black CJ at 443.  In the present case the Tribunal did not find that the appellant and his wife had such a fear in relation to their home district of Jaffna.  The question of "relocation" to Colombo was thus not raised for consideration.

14                  In determining whether there was a real chance that the appellant and his wife would be persecuted for a Convention reason, the Tribunal had to form an opinion as to what was likely to occur if they were returned to Sri Lanka: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574.  The Tribunal appears to have assumed that the appellant and his wife would re-enter Sri Lanka via Colombo and, further, to have assumed in their favour that they had a subjective fear of persecution in that part of their country.  Accordingly, the Tribunal turned its mind to what might happen to the appellant and his wife in Colombo if it were "too dangerous for them to return to Jaffna".  The Tribunal found that, even in those circumstances, there was no real chance of persecution.  That approach of the Tribunal does not involve an error of law. Cf. Re The Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 at paras, 27-28.

15                  The particulars alleged in paragraphs (b) and (c) of ground 4 appear to have been relied on before Madgwick J only for the purposes of the relocation issue.  However, before us, the appellant's solicitor latched on to those particulars in order to demonstrate an error of law on the part of the Tribunal in the interpretation and application of the word "persecution".  The High Court in Guo (at 570) called persecution the second element of the Convention definition.

16                  In its discussion of the Convention definition, the Tribunal said (at p.3): ""Persecution" means serious or significant harm."  The appellant's solicitor submitted that statement was wrong in law.  He relied on Branson J's disapproval of such a formulation in Kanagasabai v Minister for Immigration and Multicultural Affairs [1999] FCA 205.  In that case her Honour said (at [27]):

"… Nothing in the reasons for decision of the High Court in Guo's case suggests that the High Court intended in that case to reconsider established authority on the meaning of "persecution".  It rather intended, as I read the case, to make explicit what had in earlier authority been implicit, namely, that the type of harm which can constitute persecution cannot be trivial or insignificant harm but rather must be harm of significance."

17                  Subsequently, in Gersten v Minister for Immigration and Multicultural Affairs (2000) 169 ALR at 167, Katz J declined to follow the decision of Branson J on this point.  His Honour remarked that a formulation very like that criticized by Branson J had been employed by other judges of the Court, including Burchett J in Prasad v Minister for Immigration and Ethnic Affairs (unreported, 4 April 1997) at 2-3.  Katz J said (at [151]):

"In Kanagasabi [sic], as I understand her Honour's reasons for judgment,     Branson J took the view that, in order to constitute "persecution" for Convention purposes, a type of harm "cannot be trivial or insignificant harm but rather must be harm of significance" (see at [27] and see also her Honour's reasons in Shetty v Minister for Immigration and Multicultural Affairs [1999] FCA 1601 (unreported; 18 November 1999) at [17]).  I infer from that formulation of what amounts to "persecution" for Convention purposes that her Honour's difficulty with the formulation used by the Tribunal in the case before her … must have been its inclusion of the adjective "serious" as an alternative to "significant" in order to describe the relevant harm.  However, I am unable to regard the addition of that adjective to the formulation as having been intended to do anything more in the context than merely provide a synonym of the adjective "significant".  (Compare Branson J's use in her own formulation of the test of persecution for Convention purposes of the phrase "trivial or insignificant harm", which appears to me to have amounted to the use of an antonym of "serious" as a synonym of an antonym of "significant".)"

18                  Branson J did not suggest that the Tribunal in Kanagasabai used the word "or" in the phrase "serious or significant harm" in a conjunctive sense so that it should be read as "and".  That being the case, we Ifind it difficult to perceive a real difference between "significant harm" and "harm of significance".

19                  However, assuming that "harm of significance" is the test, in the present case the Tribunal plainly assessed the "raids" to which the appellant and his wife were subjected in Colombo on such a basis. It found that they were not arrested or taken to a police station.  In the light of the claims made by the appellant and his wife, whatever the Danish Immigration Service and the Department of Foreign Affairs and Trade may have said in the material to which the Tribunal referred about bribes paid to secure the release of detained Tamils, it was unnecessary for the Tribunal to consider extortion in this case.  No error of law is thus made out.

20                  The appeal should be dismissed with costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 10 March 2000

Mr L.J Karp of McDonnells, solicitors, appeared for the appellant.

Tim Reilly of counsel, instructed by the Australian Government Solicitor, appeared for the respondent.

Date of hearing:            21 February 2000

Date of judgment:         10 March 2000