FEDERAL COURT OF AUSTRALIA

Govindan v Minister for Immigration & Ethnic Affairs & Anor [2000] FCA 932

MIGRATION – application for protection visa – review of decision of Refugee Review Tribunal – whether the Tribunal should have exercised its power under s 427 to authorise a medical examination of the applicant – whether requirements of s 430(1) complied with

Migration Act 1958 (Cth) ss 427, 430, 430(1) and 476(1)(a)

Zaltni v Minister for Immigration [2000] FCA 399 – referred to

Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681 – applied

Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 – referred to

GOVINDAN v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS AND ANOR

V 107 of 2000

JUDGE:          MERKEL J

PLACE:          MELBOURNE

DATE:            27 JUNE 2000

The Court orders that the application be dismissed with costs.

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

REASONS FOR JUDGMENT

1                     The applicant in this matter seeks to review a decision of the Refugee Review Tribunal (“the Tribunal”), handed down on 19 July 1996, that the applicant is not a refugee and therefore not entitled to a protection visa.  The issue stated by the Tribunal for its decision was whether the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 (“the Convention”).  The ground for protection claimed by the applicant before the Tribunal was that, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, he is a person who is outside Sri Lanka, being the country of his nationality, and is unable or, owing to such fear, unwilling to avail himself of the protection of that country.

2                     The applicant at the time of the decision, as stated by the Tribunal, was a 35‑year-old single male citizen from Colombo, Sri Lanka, who is a Tamil.  He arrived in Australia in May 1995 and applied for refugee status.  His application for refugee status was rejected by a delegate of the Minister for Immigration and Multicultural Affairs on 3 January 1996 and the applicant sought a review of that decision by the Tribunal.  The application for review, which has been remitted to this court from the High Court, was made on a number of grounds.  However, in the course of submissions by counsel for the applicant, those grounds were quite properly refined and, in essence, two grounds were relied upon.

3                     The first ground was that the Tribunal failed to exercise its power under s 427 of the Migration Act 1958 (Cth) (“the Act”) to institute inquiries by way of requiring a medical examination of the applicant to determine the applicant's particular personal vulnerability to persecution for a Convention reason.  The evidence before the Tribunal was that the applicant was experiencing anxiety symptoms, including sleep disturbance, nightmares, headaches and frequent anxious thoughts, essentially related to the possibility of his return to Sri Lanka.  That evidence was based upon a medical report provided by a general practitioner treating the applicant.  I quote from the material before the Tribunal:

“[The applicant] shared recent experiences of nightmares and sleeplessness…which indicate his stressed condition which is exacerbated by the uncertainties connected with his stay in Australia.  his return to Sri Lanka, with his specific background history and in view of the prevailing political situation, would certainly be traumatic for him and his family, with no hope of the possibility of returning to…a new life in Australia.”

4                     It was submitted by counsel for the applicant that on the basis of this evidence, the Tribunal should have arranged for the applicant to undergo a proper medical examination which would have convinced it that he had a particular vulnerability to persecution for a Convention reason.  It was further submitted that such additional medical evidence would have somehow assisted the Tribunal in determining whether the applicant’s fear of persecution was well-founded.

5                     In my view the submission is misconceived for two reasons.  The first is that the applicant's medical condition appears to have been accepted by the Tribunal.  The Tribunal found in its decision that the applicant, being outside his country of origin, had a subjective fear of persecution.  It is implicit in that finding that the Tribunal accepted the evidence given on the applicant’s behalf regarding his particular vulnerability, at the subjective level, to the persecution he feared on his return to Sri Lanka.  That evidence having been accepted, it could not have been usefully added to by any confirmatory or further medical opinion brought about by a direction of or enquiry by the Tribunal.  There was no duty imposed upon the Tribunal to further investigate that matter.

6                     The second reason why the submission is misconceived was stated in the decision of the Full Court in Zaltni v Minister for Immigration [2000] FCA 399 at [47].  The court said, in respect of a submission about the Tribunal’s treatment of a psychological report:

“The contested question for determination here is not whether the appellant and his family were and are stressed by their experiences in Tunisia and by the fear of return but whether their fears are well founded in that there are objective grounds for believing that they are at risk of persecution if they return.  Accordingly, the unsatisfactory treatment of the psychologist's report is in our view untouched by s 430.”

7                     Whilst their Honours were addressing a different issue in that case, in my view the same comment may be made concerning the submission of counsel for the applicant in relation to the further medical report.  The medical report that was said to be required was not relevant to whether the fear, found to have been genuinely held by the applicant, was well-founded.  That question involved an objective inquiry and, in that regard, a person who is psychologically vulnerable to being harmed by persecution does not have his or her case for persecution assisted, or detracted from, by reason of that vulnerability.

8                     I would accept for present purposes that someone who has a stoic ability to withstand persecution would be as entitled to have his or her claim for persecution made out as a person who is vulnerable to persecution.  The real question addressed by the Tribunal, and required to be addressed by it, was whether the fear found to have been held by the applicant was well-founded.  Accordingly, for those reasons I am not satisfied that the first ground of review has been made out.  In these circumstances it is unnecessary to address the substantive aspect of that ground, namely, whether there was in any event a duty imposed upon the Tribunal to conduct that medical examination.

9                     The second ground of review relied upon related to s 430 of the Act.  For present purposes I am prepared to accept that the Court should apply the decision of the Full Court in Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681, that failure to comply with s 430(1) of the Act does amount to a failure to observe procedures required by the Act to be observed in connection with the making of a decision under s 476(1)(a).  The submission put in reliance upon s 430(1) was that the Tribunal failed to discharge its obligation to make a finding as to the applicant’s risk of persecution for a Convention reason in the event that he returned to Sri Lanka, and on his return found himself to be in the position of a young Tamil male in Colombo.

10                  It was said that the issue addressed by the Tribunal was the applicant’s risk of persecution as a returnee to Colombo, rather than the risk he confronted being a young Tamil male in Colombo.  The evidence accepted by the Tribunal was that young Tamil males in Colombo did face a risk of questioning.  Importantly, there was evidence that some young Tamil males in Colombo faced a risk of detention and mistreatment or torture in custody in addition to harassment.  The question is whether that risk applied to the applicant.

11                  The Tribunal addressed the critical question in terms of the risk confronting the applicant, not as a returnee, but as a young Tamil male in Colombo.  The Tribunal considered and referred to country reports in detail in its decision.  It evaluated those reports and concluded that young Tamil males in Colombo who come from the north, who do not have a national identity card and who have no relatives or connections in the city face a risk of interrogation, detention, mistreatment or torture in custody and/or harassment, especially in the wake of violent actions by the LTTE or allegations of such actions.  However, after considering further reports, the Tribunal concluded that the risk of persecution for persons who had established associations or connections in Colombo was substantially less than for those who did not.

12                  The critical finding in that regard in respect of the applicant was that the applicant was not a person at risk, in the sense of suffering a real chance of persecution for a Convention reason, because he did not fall within the profile of persons at risk for the following reasons set out in the Tribunal's decision:

“He is a registered resident of Colombo, however, the Tribunal notes that he has spent a vast majority of his time since 1982…overseas.  He was born in Colombo and his elderly parents and six sisters live there.  He has completed all his education and worked for ten years in Colombo.

The Tribunal does not accept the Applicant's claim that the Sri Lankan authorities have determined that the Applicant is a ‘terrorist’.  I accept while he has his parents in Colombo along with his six sisters, his identification would show he was born and resident in Colombo.  He has lived there all of his life (save for the four years he worked in Saudi), he speaks Tamil and is understood when he speaks Sinhala, he is 35 years of age, has a national identity card and importantly has a stable employment history in Colombo spanning ten years.”

13                  In my view the Tribunal was plainly addressing in its decision the risk that the applicant faced not as a returnee to Colombo, but as a young Tamil male in Colombo.  The question addressed by the Tribunal was the question raised by the material and the evidence before it.  It addressed that question in a manner that was consistent with its legal obligations and the findings it made in respect of those matters were open to it on the evidence.

14                  In Paramanathan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 at 56-57, I set out the Tribunal's obligations as an inquisitorial body saying, in substance, that it is required to determine the substantive issues raised by the material and the evidence before it.  I said that these obligations were a fundamental incident of the inquisitorial function of an administrative tribunal such as the Refugee Review Tribunal.

15                  It is plain from its obligations under s 430 that the Tribunal is required to set out its material findings of fact and the evidence upon which those findings were based in respect of the substantial issues upon which its decision is to turn.  I am satisfied, for the reasons I have already set out, that the Tribunal properly discharged its functions and did not err in law in doing so in this case.

16                  Accordingly, for the above reasons the two grounds relied upon by the applicant in the present case, as refined by his counsel, have not been made out.  No error of law or other ground of review has been established, as required under Part 8 of the Act.  It must follow that the application is to be dismissed with costs.

Associate:

Dated:              27 June 2000