FEDERAL COURT OF AUSTRALIA

Sivarasamoorthy v Minister for Immigration & Multicultural Affairs [2000] FCA 556

MATHAN SIVARASAMOORTHY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 85 OF 2000

LINDGREN J

2 MAY 2000

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 2 February 2000, affirming a decision of a delegate (“the Delegate”) of the respondent (“the Minister”) not to grant him a protection visa.

2                     Section 496 of the Act provides that the Minister may, by writing signed by him or her, delegate to a person any of the Minister’s powers under the Act.  It is not in dispute that the Minister delegated all relevant powers to the Delegate.

3                     Section 65 of the Act provides that after considering a valid application for a visa, the Minister, if satisfied of the matters specified in the section, is to grant the visa, or, if not so satisfied, is not to grant the visa.  One of the matters specified in s 65 is that the criteria for the visa specified by the Act or the regulations have been satisfied.  Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant for it is 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”).

4                     Article 1A(2) of the Convention provides that a refugee is 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.”

5                     Criteria to be satisfied by an applicant for a protection visa at the time of the decision on the application also include the criterion specified in cl 866.221 of Schedule 2 to the Migration Regulations 1994, which is that the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Convention.

6                     The RRT’s decision was a “judicially reviewable decision” (s 475(1)(b) of the Act), the Applicant was entitled to apply to this Court for review of it on certain grounds (s 476) and the Court has with respect to it the jurisdiction provided by Pt 8 of the Act, but no other jurisdiction (ss 485, 486).

7                     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, membership of a particular social group and (imputed) political opinion.

Procedural background

8                     The Applicant arrived in Australia on 6 October 1999. On 11 October,  he applied for a protection visa (visa sub-class 866).  The Delegate refused the application on 17 December. On 23 December, the Applicant applied to the RRT for review of the Delegate’s decision.  The RRT conducted a hearing on 25 January 2000.  As noted above, on 2 February  the RRT affirmed the Delegate’s decision.  The Applicant commenced the present proceeding on 4 February  and filed an amended application on 3 March 2000.

The reasons for decision of the RRT

9                     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”.

10                  The RRT first set out the claims made by the Applicant in a statutory declaration dated 22 October 1999 and in an extract from the record of the on‑arrival interview of the Applicant at Perth airport on 6 October 1999. In addition, the RRT received submissions on behalf of the Applicant on 20 January 2000, a letter from Amnesty International dated 25 January, printed country information tendered on behalf of the Applicant at the hearing, and a submission by the Applicant’s adviser made in writing shortly after the hearing.

11                  In the “Findings and Reasons” section of its Reasons for Decision, the RRT noted that the Applicant’s account at the airport interview differed from that in his statutory declaration.  In particular, it noted that the record of interview made no reference to the issue of his involvement, actual or imputed, with the Liberation Tigers of Tamil Eelam (“LTTE”). The RRT referred to dicta of Goldberg J in Sujeendran Sivalingam v Minister for Immigration & Multicultural Affairs [1998] FCA 157 and of the Full Court of this Court on appeal in that case ([1998] FCA 1167) warning that caution should be exercised before too much significance is given to unsatisfactory aspects of an initial interview at an airport in a strange country.  But the RRT thought that the discrepancies in the present case, in particular the one mentioned above, could not be ascribed to the Applicant’s psychological condition upon arrival.

12                  The RRT had other concerns about the Applicant’s credibility. These included conflicting accounts of his region of origin and date of birth.  At the hearing he said he was born at Inuvil, some seven kilometres north of Jaffna Town, but in his statutory declaration he had said he was born at Tellipallai, which is some fourteen kilometres north of Jaffna.  In his application form and at the on‑arrival interview he gave his date of birth as 15 August 1977, in his statutory declaration, 15 October 1977, and on the hearing again 15 August 1977.

13                  The RRT also found the Applicant’s account of other events to be unconvincing.  These were an alleged acquisition of land from him and the alleged arrest of him and his father.  In his on‑arrival interview the Applicant said:

“My houses have been destroyed.  The Government has reclaimed them to extend the airport.”

14                  The RRT noted that the Sri Lankan Information Monitor of September 1999 reported that a Gazette notification (No 1083/9 of 8 June 1999) seemed to have been issued for the acquisition of lands in the vicinity of Palaly airport, but thought that the acquisition had not actually occurred or was only occurring at about the time of the hearing, and that the Applicant did not appear to have lived at the location in question since 1986.

15                  In his on‑arrival interview the Applicant said he had been told by people from Jaffna that his father had been arrested by the Sri Lankan Army but that he did not know the date of the arrest which occurred after he ceased living with his father.  But in his statutory declaration he said that the Sri Lankan Army had

·        arrested him and his father at the family home in Chavakachcheri, apparently in or about September 1997 (I discuss the timing of this event later);

·        kept them in detention for about a week;

·        beaten his father but not the Applicant (the Applicant thought he had not been beaten because he was too young (he would have been about 20‑21 years old at the time));

·        and released them both at the end of the week.

16                   In a written submission to the RRT dated 17 January 2000, the Applicant dated the arrest August 1998.  He adhered to the August 1998 date at the hearing on 25 January 2000.  In a written submission to the RRT on the day of the hearing, the Applicant’s adviser referred to the arrest and detention as having occurred in September 1998.

17                  The RRT described the Applicant’s account of the arrest and detention as “far-fetched”.  It noted the discrepancies in timing.  It found it implausible that the father would be beaten while the Applicant was required, as he alleged, to report to the Army to reveal the whereabouts of his cousin, and that the Applicant would not be beaten because he was “so young”.  The RRT thought the Applicant’s account of these events inconsistent with the modus operandi of the Sri Lankan army. Furthermore, the RRT thought it unlikely, if the Applicant’s cousin had been a well-known member of the LTTE, that he would have risked repeated visits to his uncle in an area held by Sri Lankan armed forces.

18                  The RRT did not accept that the arrest of the Applicant and his father and the beating of the father had occurred at all.  Nor did it accept other claims which related to and followed on from this alleged incident.  These included claims about the Applicant’s family’s current whereabouts and his claim that he is not in contact with them.

19                  The RRT also dismissed the Applicant’s account of his escape to Australia since it conflicted with what he had said in his on‑arrival interview. It found that the Applicant had not been conscripted by the LTTE as claimed and that he did not have a LTTE profile, whether arising from an actual or imputed association with the LTTE.  The RRT found it implausible that one of the ‘chief members’ of the LTTE (the Applicant’s cousin) would have exposed himself to danger by visiting the Applicant to convince his family to let him train with the LTTE; it found, rather, that the LTTE would have used force to secure that objective. The RRT also found the credibility of the Applicant lacking on account of conflicting claims he gave regarding his lack of documentation on arrival in Australia.  It found implausible his claim that he gave his Sri Lankan passport to an agent who accompanied him to Singapore.

20                  The RRT was not satisfied that the Applicant had any connections  with the LTTE or the Sri Lankan Army which would suggest that he would come to harm if he were to return to Sri Lanka.  It did not accept the Applicant’s claim that he feared persecution by the LTTE because he had escaped from their camp, because it did not accept that he had been conscripted by the LTTE at all.  Nor did it accept that the Applicant would be suspected by the Army to be a LTTE supporter since it did not accept that either the Applicant or his family had ever been of interest to the authorities.

21                  The RRT reviewed information on the situation of Tamils in Colombo in the light of the Applicant’s claim that, because of his Tamil ethnicity, he would be persecuted by the Army and the Police upon his return.  The information included material received from the Department of Foreign Affairs and Trade (“DFAT”) in a cable dated 9 June 1999, the Current Guidelines on Newly Arriving Sri Lankan Asylum Seekers of the United Nations High Commissioner for Refugees (“UNHCR”) (4 January 1996), and an edited fax from the UNHCR, Canberra, to the Australian Government of 1 July 1998 on deportations to Sri Lanka.  The RRT also considered country information provided by the Applicant, the Applicant’s adviser,  Amnesty International and the Forum for Human Dignity.

22                  On the basis of the country information, the RRT did not accept that all young Tamils face a real chance of persecution because they are Tamil or that the Applicant faces a real chance of persecution by reason of his ethnicity.  It concluded that the Applicant may well be detained and questioned at Colombo airport since he lacks extensive documentation, but thought that this would not constitute persecution and would be a legitimate means of dealing with security issues.  The RRT did not accept that the Applicant would be persecuted on arrival merely because he was a young Tamil male from the north of the country.

23                  The RRT found that the Applicant would be able to return to Jaffna, the area where he claimed to have resided for a great part of his life, after a security check was completed.  This finding was based on various DFAT cables, a Report on the Danish Immigration Service’s 1997 Fact-Finding Mission to Sri Lanka, and the Canadian Refugee Board’s Research Directorate’s October 1998 Report on Sri Lanka.

24                  Accordingly, the RRT concluded that “the Applicant does not face a real chance of being persecuted for his race/ethnicity should he return to Sri Lanka.”  It did not accept that the Applicant was involved with the LTTE and found that there was not a real chance that he would be persecuted for reasons of political opinion or any other Convention reason, now or in the reasonably foreseeable future, should he return.

Grounds of the present application for an order of review

25                  The Applicant’s amended application sets out the grounds on which he relies.  They and particulars of them are as follows:

“1.       Procedures that were required by the Migration Act 1958 to be observed in connection with the making of the Tribunal decision were not observed (s476(1)(a)).

(a)       Breach of the obligation to provide reasons under s430 of the Migration Act

PARTICULARS

(1)       The Tribunal failed to make finding on a material question of fact being the claim of the applicant that his cousin Senthoorvasan was a member of the LTTE who frequented the applicant’s family house.

2.         The decision was not authorised by the Act [s476(1)(c)]

PARTICULARS

(a)       in not making finding on the material questions of fact set out in ground 1 above, the RRT did not consider the real question which it was its duty to consider as it did not assess whether the applicant’s fear of persecution were well‑founded based upon the whole case which the applicant put to it.

(b)       The Tribunal constructively failed to exercise its jurisdiction as it formed its opinion of whether the applicant’s fear of persecution was well‑founded based upon the fact that the applicant originally claimed to have been detained by the Sri Lankan army in September 1997 whereas the applicant never made this claim.

3.         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 Tribunal. [s470(1)(e)

PARTICULARS

(a)       in not making findings on the material questions of fact set out in ground 1 above, the RRT erred in failing to make the findings required by the relevant law.

4.         The decision was based on a fact and there is no evidence that that fact existed s476(1)(g).

PARTICULARS

(a)       The RRT’s decision was based on the fact that the applicant originally claimed to have been detained by the Sri Lankan army in September 1997 whereas the applicant never made this claim.”

Brief outline of the parties’ submissions on the present application for an order of review

26                  One of the Applicant’s principal claims was that, through his cousin’s known membership of the LTTE, he was, and would in the future be, perceived to have a connection with the LTTE.  The Applicant submits that the RRT failed to address the question whether his cousin was a member of the LTTE and consequently that it failed to address the question whether the Applicant’s fear was well‑founded (the Applicant claimed that he feared that his cousin might be captured or killed and his name might become widely known, resulting in problems for the Applicant and his family).  The Applicant submits that this omission demonstrates that the RRT failed to comply with s 430(1)(c) of the Act and provides the ground of review described in s 476(1)(a).

27                  The Applicant submits that if, on the other hand, the RRT did make that finding in relation to his cousin’s known membership of the LTTE by reason of its non‑acceptance “that either the Applicant or his family have ever been of interest to the authorities as claimed” (emphasis mine), it does not cite evidence to support that finding.  This, the Applicant submits, is a failure by the RRT  to comply with s 430(1)(d) and also gives rise to the ground of review provided for in s 476(1)(a).

28                  Alternatively, the Applicant argues that a failure to make findings concerning his factual claims amounts to a constructive failure to exercise jurisdiction and enlivens the ground of review referred to in s 476(1)(e).

29                  The Minister submits that the RRT dealt with, and rejected, the Applicant’s claim that he had a well-founded fear of persecution because his cousin, a member of his “family”, was a known member of the LTTE.  Further, the Minister submits that if reasons were required to be given for this finding (which he does not concede), the RRT gave them.

30                  The Applicant also submits that the RRT’s decision was based upon the fact that he changed the date of his arrest and detention and that that fact (the changing of the date) did not exist, with the result that the ground of review referred to in s 476(1)(g) is made out.

31                  In reply the Minister submits, firstly, that the finding (change of date) is not a true link in a chain of reasoning as is required for the s 476(1)(g) ground to be made out, but one of several independent reasons which the RRT gave for rejecting the Applicant’s claim of past persecution; and, secondly, that the Applicant does not and cannot establish that the fact found by the RRT (change of date) does not exist.

32                  Finally, the Applicant submits that the RRT’s treatment of his claim that he was detained is such that its finding that it is not satisfied that Australia has protection obligations under the Convention to the Applicant is a purported and not an actual exercise of its jurisdiction and thus the decision is reviewable under s 476(1)(c) of the Act.

Reasoning on the present application for an order of review

First ground

33                  In my opinion, contrary to the Applicant’s submission, the RRT did make a finding as to whether the Applicant’s cousin was a known member of the LTTE.  The RRT stated:

“It [the RRT] … does not accept that the Applicant would be suspected as an LTTE supporter by the Army based on the fact that it does not accept that either the Applicant or his family have ever been of interest to the authorities as claimed.”

34                  The Applicant submits that it should not have assumed that the word “family” in this passage was intended by the RRT to include the cousin.  But the cousin was the only person through whom, according to the Applicant’s claim, he and the members of his immediate family, such as his father, were implicated.  The RRT stated on the page preceding that on which the passage quoted above appears:

“… had his cousin been a well‑known member of the LTTE as the Applicant claims, it is doubtful that he would have risked repeated visits to his uncle to eat, in an area held by the Sri Lankan armed forces.”

35                  By the words “had his cousin been” the RRT meant “if his cousin had been” or “assuming his cousin was”.  By the word “he” the RRT meant to refer to the cousin.  In this passage the RRT was giving one of four reasons why it did not accept that the Applicant and his father had been detained for a week.

36                  Against the background of this material on the preceding page of its Reasons, the RRT should be understood in the passage first set out above to have been stating that it did not accept that the Applicant would be suspected to be an LTTE supporter, because it did not accept that he or his family (including his cousin) had ever been of interest to the authorities as claimed.

37                  The Applicant submits that if this be so, nonetheless the RRT failed to comply with the requirements of s 430(1)(d) of the Act by not citing any evidence or other material to support its finding.  I do not accept this submission.  First, s 430(1)(d) does not require the RRT to refer to evidence or other material peculiar to its non-acceptance of every allegation made by an applicant.  In this case, the RRT referred to various discrepancies in the accounts given by the Applicant from time to time as a result of which it concluded that he was “not a witness of truth”.  The discrepancies were given as reasons why the RRT had no confidence in the Applicant’s claims generally.  One of those claims not accepted for that reason was the claim that the cousin was a known member of the LTTE and visited the Applicant’s family home.  In any event, in relation to that specific claim, the RRT gave a specific reason for rejecting it:  the RRT thought it doubtful that the cousin would have risked repeated visits to his uncle to eat in an area held by the Sri Lankan armed forces.

38                  The Applicant submits further and in the alternative that, by failing to make a finding concerning his claim that his cousin was a known member of the LTTE, the RRT constructively failed to exercise its jurisdiction with the result that the ground of review provided for in para (c) or para (e) of s 476(1) is available.  Since I have concluded that the RRT did make the finding referred to, I need not consider these alternative ways in which the Applicant’s case is put. 

Second ground

39                  In so far as the second ground (that the RRT’s decision was not authorised by the Act, cf s 476(1)(c)) depends on the suggested failure of the RRT to make a finding on the question whether the Applicant’s cousin was a known member of the LTTE, I have dealt with this ground in my conclusion above that the RRT did make a finding on this question, one adverse to the Applicant.

40                  A second particular of this ground is that the RRT constructively failed to exercise its jurisdiction because it understood that the Applicant had originally claimed that he and his father were detained by the Army in September 1997, whereas the Applicant had not made that claim at all.

41                  In his statutory declaration, the Applicant stated that he was born in October 1977; that the family home was in Chavakachcheri where his father conducted a shop; and that when the Applicant was about ten years old LTTE members came to the family home to collect food parcels, went to his father’s shop to collect money from him and visited the Applicant’s school where they held meetings with students, who were compelled to attend.  He said that when he was about fifteen years old (about 1992‑1993) he was forced to dig trenches for the LTTE and that he did this for about two years (apparently until about 1994‑1995).  He stated that in 1995 he moved with his mother, sister, uncle, aunt and cousins to Mallavi because the Army had taken over Jaffna and were advancing towards Chavakachcheri.  He said that his father remained in Chavakachcheri to continue to run the family business and then became unable to leave Chavakachcheri once the Army took control of the area.

42                  The Applicant stated that after the move to Mallavi, he was again forced to dig trenches for the LTTE and his family had to supply food parcels to them.  He stated that the family lived on money that his father had given them but that when that money ran out, his mother pawned her jewellery and it was not possible for his father to send further money from Chavakachcheri.  Next in his statutory declaration, the Applicant stated as follows:

“8.       In September 1997 my mother, my sister and myself went back to Chavakachcheri to see my father.  When we got there, someone had given information to the Sri Lankan Army about my cousin, Senthoorvasan, who is a known member of the LTTE.  The Army had been told that he had come to my family’s house for meals on several occasions.  For this reason the Army came to my father’s house and arrested my father and myself.

9.         We were kept in detention for one week.  My father was beaten.  They did not beat me.  I think that is because I was so young.  They tried to scare me by saying that they would kill my father if I did not sign a paper, which stated that I was a member of the LTTE.  I was very afraid but I did not sign the paper.  My father and I were released after one week.  I believe we were released because they knew where my father’s business was and they thought that my father would not leave his business.

10.       Before I was released they asked me to find out where my cousin was living.  I said I did not know.  They told me that until I could give them that information I would have to report to them everyday and sign a book.  I was very afraid as I knew I could never tell them the whereabouts of my cousin.” (emphasis mine)

43                  The Applicant submits that the RRT erred in thinking that para 8 (set out above) constituted a claim that the arrest took place in September 1997.  I accept the Minister’s submission, however, that the natural meaning of para 8 is that the arrest took place shortly after the Applicant, his mother and sister re‑joined the Applicant’s father back at Chavakachcheri.  The use of the pluperfect tense sets the background to the last sentence in para 8.  The natural meaning of the paragraph is that the arrest and detention took place shortly after the Applicant’s return to Chavakachcheri.  It is an artificial interpretation to understand the Applicant as having had in contemplation an arrest and detention in August 1998 – eleven months later.

44                  It follows that in my view the Applicant did give different dates, some eleven months apart, for the arrest and detention, and that the RRT was correct to think that he had done so.  In any event, contrary to the Applicant’s particularisation, the RRT’s conclusion that the arrest and detention had not occurred was not “based upon” only the Applicant’s assertion as to the timing.  The RRT gave three other reasons why it disbelieved the Applicant on this matter.  The other reasons were that the RRT thought it implausible that the father would have been beaten yet the Applicant required to report to the Army to reveal the whereabouts of his cousin; that the Applicant revealed an unfamiliarity with the modus operandi of the Sri Lankan Army in asserting that he thought its reason for not beating him was that he was “so young”; and that if his cousin had been a well‑known member of the LTTE, it is doubtful that he would have risked repeated visits to his uncle to eat in an area held by the Army.  One may or may not be persuaded by all of  these other three reasons, but the present point is that the RRT did not base its conclusion upon the discrepancy in timing, which was merely one of four independent reasons for its rejection of the Applicant’s claim that he and his father were taken into detention for a week by the Army.

Third ground

45                  The third ground turns on the suggested failure to make a finding as to whether the Applicant’s cousin was a member of the LTTE who frequented the Applicant’s family house – a matter which I dealt with when addressing the first ground.

Fourth ground

46                  The fourth ground turns on the discrepancies between the September 1997 and August 1998 dating of the arrest and detention of the Applicant and his father – a matter with which I dealt when addressing the second ground.

Conclusion

47                  For the above reasons, the Applicant has not made out the grounds of review relied on and the application will be dismissed with costs.

Associate:

Dated:              2 May 2000