FEDERAL COURT OF AUSTRALIA

Anderson v Minister for Immigration & Multicultural Affairs [2000] FCA 862

RIENZIE CLAUDE ANTHONY ANDERSON v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 145 OF 2000

HELY J

28 JUNE 2000

SYDNEY

THE COURT ORDERS THAT:

1.                  The application is dismissed with costs.

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 for review of a decision of the Refugee Review Tribunal (“RRT”) given on 1 February 2000.  RRT affirmed the decision of the delegate of the respondent to refuse to grant a protection visa to the applicant and his family.  Only the applicant husband made specific claims under the Convention Relating to the Status of Refugees 1951, and the matter was dealt with on the basis that, in respect of persons who are members of the same family unit, it is enough if one family member is a person to whom Australia has protection obligations.

2                     The applicant is a citizen of Sri Lanka who arrived in Australia with his wife and daughter on 28 April 1996.

3                     The applicant claimed to be a Sri Lankan Burgher integrated into the Tamil minority community, who feared persecution for reasons of race, religion, nationality, membership of a political, social group or political opinion (RD 61).  The applicant emphasised (RD 62) that as far as the submissions in respect of race, religion, nationality, membership of a particular social group or political opinion are concerned, for the most part they are indistinguishable from each other.

4                     There was information before RRT that the Burghers are the Christian descendants of Portuguese and Dutch colonisers of Sri Lanka.  Information obtained from the Department of Foreign Affairs and Trade (“DFAT”) in 1991 (RD 166) was to the following effect:

“Because they are not party to the ethnic dispute, Burghers are less repeat less likely to be discriminated against or be the targets of violence than members of any other ethnic group.  As long as they stay out of Tiger controlled territory and the ethnic borderlands (and the community is overwhelmingly concentrated in the urbanised south-west) Burghers face no problem at all.”

In 1996 DFAT reported that:

“Burghers are not a particular group in which the government is interested.”

5                     Mr Silva, the solicitor for the applicant, accepted that Burghers as Burghers were not exposed to persecution.  However, Burghers having close Tamil relatives were, in his submission, in a different position.  The applicant claimed that his grandmother was a Tamil; that he had many Tamil relatives with whom he was closely associated, particularly his cousins who are suspected by the authorities as LTTE members or supporters.  “This is not the normal case with the Burghers in general in Sri Lanka” (RD 113).

6                     RRT rejected the applicant’s contention that he is a “Tamil Burgher” or that he is perceived as being Tamil.  RRT was not satisfied that the applicant has ever been of any interest to the Sri Lankan authorities, or that there is any ongoing interest in the applicant by the Sri Lankan authorities (RD 154).  RRT rejected the applicant’s claim that he has been “integrated into the Tamil community”.  At RD 155 it said:

“... (RRT) cannot be satisfied that visits by Tamil relatives, briefly and as long ago as 1983 or 1984, would result in any shift in the perception either by the general public or the Sri Lankan authorities of the applicant or his family’s race, from Burgher to Tamil.  (RRT) finds that the applicant is a Burgher, but cannot be satisfied that he is either a ‘Tamil Burgher’ or a ‘Tamil’ and cannot be satisfied that he is perceived as one.”

RRT was thus not satisfied that the applicant has been imputed with an LTTE profile as a result of his race.

7                     The applicant also relied upon incidents said to have taken place in 1984, July 1992 and February 1996 in support of his claim.  The applicant’s contentions in this respect were rejected by the Tribunal.  At RD 159 the Tribunal said:

“The Tribunal cannot be satisfied that the applicant has been truthful in his claims to the Tribunal.  The Tribunal has further found that: the applicant concocted claims regarding his race (as a Tamil or Tamil Burgher); it cannot be satisfied that the applicant has been credible in regard to the claimed abduction in 1984, or that the abduction even actually happened; it cannot be satisfied that the (sic, he) was arrested in 1992; it cannot be satisfied that the applicant has any well-founded Convention reason fear arising out of the claimed arrest of his cousin in 1996, and finally that it cannot be satisfied of the applicant’s credibility in relation to his claims of harm, and fears of harm by the LTTE.  Given the significant adverse findings in (sic) credibility in regard to the matters mentioned above, the Tribunal cannot accept as credible the applicant’s claim that the Sri Lankan authorities, and the LTTE, have any ongoing interest in him.”

The grounds of review

8                     Only two grounds were relied upon.  The first is that RRT failed to comply with s 430 of the Migration Act 1958 (Cth), in that it failed to state whether it accepted the truth of letters to the applicant from his parents dated 6 May 1996 and 3 July 1996 (shortly after his departure from Sri Lanka), or in the event that it did not accept this, failed to give reasons why it did not.

9                     RRT referred to these letters at RD 144-145 as follows:

“The applicant submitted two letters to the Tribunal from his mother (dated 6 May 1996) and his father and mother (dated 3 July 1996).  In his mother’s letter it is stated that three men came looking for the applicant and asking a lot of questions.  They wanted to know when the applicant was returning to Sri Lanka.

The second letter (3 July 1996) states that three men came looking for the applicant stating that they were from the CID.  The applicant’s father told them the applicant had left the country permanently.  They did not believe the applicant and accused him of joining the LTTE.  They searched the house, and assaulted the applicant’s father.  The letter warned the applicant that he should not return to Sri Lanka.”

The only other reference in RRT’s decision to these letters is at RD 150 when the Tribunal records that at the hearing, it asked the applicant why the CID would be looking for him, to which his response was:

“They must have information about Jeyanathan.”

Jeyanathan is the applicant’s cousin, and it will be recalled that RRT had rejected the applicant’s claim that he had any well-founded Convention reason fear arising out of the claimed arrest of his cousin in 1996.

10                  RRT found that the claims of harm, threats of harm by the Sri Lankan authorities and the LTTE were a fabrication (RD 159).  It came to that conclusion because of its view of the applicant’s untruthfulness on essential elements of his claim, as well as the inconsistencies in the applicant’s claims and evidence.  The letters in question were not written by the applicant; rather they were written to him and conclusions based upon the applicant’s untruthfulness would not necessarily be translatable to the statements made in the letters.

11                  Nonetheless, it is apparent that RRT was conscious of the letters because they were twice referred to during the course of its reasons.

12                  RRT made it pellucidly clear that it was not satisfied that the applicant has ever been of any interest to the Sri Lankan authorities or that there is any ongoing interest in the applicant by the Sri Lankan authorities.  That finding amounts to an implicit rejection of the facts sought to be established by the letters, that is to say that the applicant was of interest to the authorities because, at the time of writing the letters, they were looking for him.

13                  The “material” question of fact, in the sense of the substantial issue on which the case turns: Muralidharan v Minister for Immigration & Ethnic Affairs (1996) 62 FCR 402, 414 is whether the Sri Lankan authorities had an interest in the applicant.  RRT found, as a matter of fact, that there was no such interest.  Its reasons for so finding were a disbelief in, or a lack of satisfaction as to, contentions on the part of the applicant which, if true, might have led to a different conclusion.  Whilst it would have been better if RRT had specifically addressed and dealt with the claims made in the letters, a reading of the reasons as a whole leads inevitably to a conclusion that RRT has implicitly rejected those claims.  That being so, RRT’s reasons for decision sets out the findings on any material questions of fact in conformity with s 430(1)(c) and there is no residual requirement flowing from s 430(1)(d) that RRT must explain why it rejected material pointing in a different direction: see Addo v Minister for Immigration & Multicultural Affairs [1999] FCA 940; Sivaram v Minister for Immigration & Multicultural Affairs [1999] FCA 1740.

14                  The second ground on which review is sought is that RRT treated the application as one based solely on race, and failed to deal with it under the other categories on which the application was made, in particular whether the applicant was a refugee because he belonged to a particular social group – that is ‘Burghers with close Tamil relatives’.

15                  In the written submissions, the applicant accepts that when the matter was before RRT, the claim was not specifically put on the basis of membership of a particular social group, but it is submitted that RRT was nonetheless bound to determine whether the applicant meets the criteria based on a particular social group: Paramananthan v Minister for Immigration & Multicultural Affairs (1998) 160 ALR 24.  The assertion that RRT should have distinguished between race and membership of a social group is contrary to the submission put to RRT by the applicant (noted in (3) above).

16                  RRT found that Burghers, if a social group, were not exposed to persecutory treatment.  There was nothing before RRT which would suggest that Burghers who had Tamil relatives were in any different position, except perhaps the applicant’s own contentions in this respect which RRT rejected.  The proposition that the applicant’s case was different from that which applied in relation to Burghers generally because he had assisted his Tamil relatives was addressed by the Tribunal at RD 155, and rejected.  The applicant’s claims based on the alleged incidents on 1984, July 1992 and February 1996 were rejected by the Tribunal.  RRT found that the applicant has never been, and is not, of any interest to the Sri Lankan authorities.  That finding was made in relation to the applicant’s claim that he is a “Tamil Burgher”, or that he is perceived as being Tamil.  It could make no difference to that conclusion to restate the applicant’s claim in terms of the applicant being a Burgher with close Tamil relatives.

17                  For those reasons, neither of the grounds on which review is sought is made out.  The application is dismissed with costs.

Associate:

Dated:              28 June 2000