FEDERAL COURT OF AUSTRALIA

Subakaran v Minister For Immigration & Multicultural Affairs [2000] FCA 630

MIGRATION – Protection visa – review - Tribunal decision affirming delegate’s refusal – Sri Lankan Tamil – whether evidence arising post-Tribunal decision may be taken into account - whether procedural Union – compliance – whether incorrect interpretation of the law – whether incorrect application of the law – whether no evidence – whether possibility of further application being allowed.

Migration Act 1958, s476

Minister for Immigration & Multicultural Affairs v Thiyagarajah [2000] HCA 9, followed

SIVAGNANAM SUBAKARAN V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 772 OF 1999

R D NICHOLSON

5 MAY 2000

PERTH

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.         Costs be reserved.

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

REASONS FOR JUDGMENT

1                     This is an application to review the decision of the Refugee Review Tribunal given on 14 July 1999.  The decision of the Tribunal was to affirm the decision of a delegate of the respondent not to grant the applicant a protection visa.  The application is brought pursuant to ss 475 and 476 of the Migration Act 1958 ("Act").  At the time of the Tribunal decision the applicant was a 20‑year‑old male citizen from Sri Lanka.  He arrived in Australia on 3 April 1999 and was subsequently taken into immigration custody at the Port Hedland Immigration Centre.  He lodged his application for a protection visa with the Department of Immigration and Multicultural Affairs ("Department") on 8 April 1999.

Applicant’s history

2                     The applicant's case as stated to the Tribunal as set out in its reasons was, in summary, as follows:

3                     He stated he was born and raised in Mullavi in the north‑east of Sri Lanka.  Commencing in 1987 when he was about nine years old the Indian Peacekeeping Force (IPKF) entered the area with the aim of defeating the Liberation Tigers Tamil Elam for (LTTE).

4                     He stated the area where he lived was under the control of the LTTE but soon after the arrival of the IPKF his two older brothers were taken by one of the Tamil groups supporting the Sri Lankan Armed Forces (“SLAF”).

5                     After leaving school in 1996 he worked on his father's farm.  He said that his brothers deserted the Tamil group EPDP in late 1997 and returned home but then he said the LTTE came and accused them of fighting against it.  The result was they abducted the brothers and threatened other members of the family. 

6                     In the meantime the SLAF had re-entered the region where he lived and by mid‑1998 there were three army barracks within a mile of his house.  He said there was also an LTTE presence and ongoing fighting in the area.  He claimed that some of his friends were detained by the special unit of the SLAF from mid‑1998 onwards and were interrogated.  He believes that they informed the authorities he was working for the LTTE.  As a result he went into hiding from the end of 1998 until his father decided it would be best for him to escape and arranged his passage to Australia.  Assisted by a friend of the father, he made his escape to the airport, through the airport and arrived in Australia.

7                     He told the Tribunal if he returned he would be forced by the LTTE to join its fighting forces and it would severely punish him.  He also fears he would be punished by Sri Lankan authorities for helping the LTTE because they believe he is a supporter of them.  He believes he will be detained and interrogated at the airport. 

8                     That was the case which the applicant made to the Tribunal.  It is apparent that the control of the town of Mullavi, his home town, has moved backwards and forwards between the forces locked in war in Sri Lanka.

Tribunal’s findings

9                     After setting out the legislative framework under which it was operating, the Tribunal made its findings on the evidence.  Those findings may be summarised as follows:

(i)      Despite the applicant's fears, he was never harmed by the LTTE.

(ii)         The SLAF had recently re‑asserted control over the applicant's region.

(iii)       The chances that the LTTE might be able to harass the applicant had diminished, even though it might still have a presence in the area.

(iv)    The LTTE had had ample opportunity to attack the applicant but had never done so, despite his years of resistance and his brothers' allegiance to the pro-government EPDT.

(v)     In the highly unlikely event that the LTTE changed its views of the applicant and planned to attack him if he returned to Sri Lanka, the applicant could obtain protection from the Sri Lankan authorities which had control of his area.

(vi)    In the circumstances, the chances that the applicant might be harmed by the LTTE were very remote and his fears in that respect were groundless.

(vi)    The applicant had given no evidence that the security forces had ever come to his family's property, notwithstanding its proximity to its bases.

(viii)  It was plausible that the applicant had worked for the LTTE as he indicated such activity to be the role of many citizens in the area where the LTTE had been predominant.

(ix)    While the SLAF had been ruthless in attacking the LTTE and its known supporters, there was no evidence to support the view that it attacked all citizens who had been forced to assist that group under threat.

(x)     The applicant had remained in the same location for a significant period after he says his friends were detained and informed on him, yet he was not even interrogated by the Sri Lankan authorities.

(xi)    Neither had the applicant claimed that other family members had been harassed, although his parents and four younger siblings had remained in the same location.

(xii)   The Sri Lankan authorities were aware that the applicant resided in the local area, but they had no adverse interest in him.

(xiii)  The Tribunal accepted that the applicant had people to assist him in negotiating security procedures between his home town and the airport and then through the airport, but did not accept that he was able to pass through immigration and customs controls and board aeroplanes without passing through the relevant security and administrative procedures.

(xiv)  It was plausible that the applicant's agent had helped him through the security procedures, but the Tribunal was satisfied that the applicant must have been in possession of the appropriate documents and he was not once queried.

(xv)   It was possible that the applicant could be detained and questioned on arrival in Colombo, particularly if he was suspected of being connected with the LTTE or was seen as able to provide information about people smuggling.

(xvi)  If the applicant was detained and interrogated at the airport on arrival in Sri Lanka, the Tribunal was satisfied that he would be released without any undue harm.

(xvii)At worst, the applicant might be directed to give evidence about people smuggling, but that was neither persecution nor a response that was motivated by any of the convention reasons.

(xviii)  The applicant's absence from Sri Lanka would not lead to suspicions that he had been working for the LTTE as he had been in detention, he did not have a history of harassment, and his father's friend in Negombo was able to come to his assistance and vouch for him, if necessary.

(xix)  The Tribunal was satisfied in all of the circumstances that the applicant did not face a real chance of persecution by the Sri Lankan airport authorities on account of his political opinions.

(xx)   Nor did the applicant face a real chance of persecution by the SLAF or its allies in his home area, despite the fact that some fighting still went on in that part of Sri Lanka.

(xxi)  Although there was still an atmosphere of insecurity that pervaded Sri Lanka, particularly in areas where there was ongoing fighting between the SLAF and the LTTE, and in centres such as Colombo, where there are terrorist attacks, there was not a real chance that the applicant faced persecution at the hands of either the Sri Lankan authorities and its agencies, or the LTTE, should he return to Sri Lanka.

(xxii)The applicant did not have a well-founded fear of persecution on account of his political opinions, his Tamil race, or for any other convention reason.

(xxiii)  The Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention, and he therefore did not meet the criterion for the granting of a protection visa.

10                 It will be apparent that the Tribunal was addressing the delegate's decision on the applicant's application for a protection visa based on the applicant's claims to have a well-founded fear of persecution for reasons of political opinion and his Tamil ethnicity.  He feared both the LTTE and the Sri Lankan authorities, as has previously been stated.

Grounds of review

11                  The grounds of review relied upon by the applicant as they appear in his application for an order of review were signed by a solicitor for the applicant on 10 August 1999.  However, the solicitor ceased to act for the applicant after the Tribunal decision and the lodgment of this application.  The applicant therefore did not appear before this court with the benefit of legal representation and advice.

12                  By order of the Court, pars 8 to 14 of the respondent's written outline of submissions, which dealt with the merits of the grounds of application, were translated into the applicant's language and forwarded to him.  However, as a non-legally trained person he was unable to gain assistance from that in the sense that he was unable to comprehend the legal issues.

13                  The applicant made oral submissions to the court as best he could.  To some large measure these addressed matters of evidence, being developments occurring after the decision of the Tribunal.  During the hearing I ruled that I could not take that evidence into account except so far as it may be relevant to a ground arising pursuant to s 476(4)(b) of the Act.  I also accepted that it was not open to this Court to make orders which would have the effect of reopening the matter before the Tribunal so as to allow it to take account of developments after its decision.  In that respect I sought to follow and apply the decision of the High Court of Australia in Minister for Immigration & Multicultural Affairs v Thiyagarajah [2000] HCA 9.

14                  It is necessary therefore to turn to the grounds of review which appear in the application and to consider them in relation to the reasons of the Tribunal and the evidence which was then before the Tribunal, save in the very limited respect to which I have referred to as possible under s 476(4)(b).

Non-observance of procedures

15                  The first ground of review is, "Procedures that were required by this Act or regulation to be observed in connection with the making of the decision were not observed according to s 476(1)(a) of the Act."  However, the applicant has not provided any particulars of any procedures which were not observed, nor are any apparent on the papers.  That ground of review is therefore unsubstantiated and cannot succeed.

Incorrect interpretation of applicable law

16                  The second ground of review is based on s 476(1)(e) of the Act.  The first part involves the contention that the decision of the Tribunal involved an error of law, being an error involving an incorrect interpretation of the applicable law.  As has previously been said, the Tribunal's reasons for decision set out the Tribunal's understanding of the law which it had to apply.  It set out the legislative and convention requirements in relation to a protection visa.  In my view there is nothing in the statement of what the Tribunal called "the legislative framework" or any other statement elsewhere in the reasons of the Tribunal which supports any finding that it incorrectly interpreted the applicable law.

Incorrect application of the law

17                  The other element of the second ground is a claim based on the second limb of s 476(1)(e), that the Tribunal was in error of law because it incorrectly applied the law to the facts as found by the person who made the decision whether or not that appeared on the face of the decision.  In my view there is no apparent support for that limb.  Reading the findings of the Tribunal and applying the law as correctly understood by it shows that the decision which it reached was open to it.  There was no incorrect application of the law to the facts.

Absence of evidence

18                  The third ground of the application was that there was no evidence or other material to justify the making of the decision.  That relies on s 476(1)(g) as understood in terms of s 476(4) of the Act.

19                  Subsection 476(4) limits the effect of s 476(1)(g).  Paragraph (a) of subs (4) is one of the ways in which par 476(1)(g) can be made out.  I accept the respondent's submission that par (a) has no application as it could not be said there was no evidence or other material from which the Tribunal could reasonably be satisfied that the matter was established.  As to par (b) of subs 476(4), it is necessary for an applicant to establish that the person who made the decision based the decision on the existence of a particular fact and that fact did not exist.

20                  As the findings of the Tribunal establish, this was not a decision based on the existence of a particular fact.  Furthermore the applicant must establish positively that any particular fact identified by him as falling within the par (b) did not exist.  In the context of the findings of the Tribunal it is simply not open to this applicant to establish that there was no evidence or other material to justify the making of the decision.  Furthermore the applicant has not discharged the onus to which I have referred.

Conclusion and postscript

21                  For those reasons I consider that the application for an order of review cannot succeed and must be dismissed.  However, there are further matters on which it is appropriate for the Court to address.  The applicant filed three written submissions which in whole or part addressed the recent movement of LTTE forces into control of the area of the town of the applicant and his family; namely, Mullavi.  That is not a finding of fact, but rather a statement of the way in which the additional evidence arising subsequent to the Tribunal decision could arguably be understood.

22                  Additionally, on the face of it that potential additional evidence discloses that as a consequence of the advance of the LTTE in north-east Sri Lanka increasingly harsh measures have been taken against Tamils in Colombo.  The evidence which the applicant seeks to adduce also refers to incidents of arguable persecution occurring to people who have been sent back to Sri Lanka when unsuccessful in refugee applications elsewhere.  In its findings it will be recalled that the Tribunal found it was possible the applicant could be detained and questioned on arrival in Colombo.  At the time of its decision the Tribunal was satisfied he would be released without undue harm.  The findings of the Tribunal in that and other respects may be severely affected by recent developments since its decision in Sri Lanka.

23                  This is particularly so in relation to the applicant because the evidence is that he knows only the Tamil language and does not speak Singhalese or English.  In Colombo, he would be linguistically distinguishable.

24                  In Thiyagarajah the High Court referred to the fact that the Act posits the determination of a particular application at a particular time.  It also said that the Act contemplates changed circumstances which might found a fresh application, but imposes the limitations found in ss 48A and 48B.  Section 48A prohibits a further application for a protection visa subject to s 48B.  Section 48B provides that the respondent may decide that s 48A does not apply to prevent an application for a protection visa if he considers that it is in the public interest to do so.  Counsel for the respondent has submitted that there are cases where, in the light of changed circumstances, the respondent has been prepared to exercise the power in s 48B. 

25                  This Court does not express any opinion as to whether or not this is an appropriate case for that power to be exercised by the respondent.  However, the Court does draw attention to the fact that on the possible state of the evidence which has developed since the Tribunal decision, this may be a case which should receive consideration pursuant to s 48B.  That opinion is founded on the apparent total change of control in relation to the Mullavi, the applicant's home town; his apparent inability to live other than in an area where he can safely speak Tamil and the apparent escalation of measures against Tamils in the Colombo area. 

26                  As previously stated, the application must be dismissed for the reasons which have been given. 

Associate:

Dated:              12 May 2000