FEDERAL COURT OF AUSTRALIA

Nagarajah v Minister for Immigration & Multicultural Affairs [2000] FCA 1003

MIGRATION – whether the material before the Refugee Review Tribunal raised a case of a well founded fear of persecution for a Convention reason – whether material to which the Tribunal must have regard includes submissions of the applicant’s representative

Migration Act 1958 (Cth) s 430(1) and 476

Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 - cited

Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182 - cited

Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845 - cited

NAGARAJAH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 125 of 2000

JUDGE:          MERKEL J

PLACE:          MELBOURNE

DATE:            26 JULY 2000

The Court orders that the application be dismissed.

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

REASONS FOR JUDGMENT

1                     The applicant, a citizen of Sri Lanka, arrived in Australia on 1 October 1995.  On 27 June 1996 she lodged an application for a protection visa.  On 15 August 1997 a delegate of the Minister refused to grant her a protection visa.  The applicant sought review of that decision by the Refugee Review Tribunal (“the RRT”).  On 21 September 1998 the RRT affirmed the decision of the delegate not to grant a protection visa.  The applicant commenced a proceeding in the High Court on 14 July 1999 seeking, inter alia, to review the decision of the RRT.  In so far as the High Court proceeding related to a review of the decision of the RRT it was remitted to this court.

2                     The RRT, in its decision, accepted the applicant’s version of events that led to her claiming refugee status, observing that the applicant had been “remarkably honest”.  The applicant was born in 1937, is a widow and has six children.  She came from Jaffna and had suffered severely as a result of the war in that region.

3                     It is submitted by the applicant’s counsel that her claim was based on three factors.  The first was that her children had been treated by the authorities as LTTE supporters or members and, as a result, were able to obtain refugee status in Switzerland or Australia.  It was then contended that the imputed or actual association of her children with the LTTE would be imputed to the applicant.  The second factor was said to be that the applicant was at risk of persecution as a Tamil in Sri Lanka, whether in Colombo or Jaffna.  The third factor was that by reason of her membership of her family she faces persecution although, in substance, this factor is the same as the first factor.  Counsel for the applicant stated that, for the purposes of the review, the persecution feared by the applicant was persecution by the authorities rather than the LTTE.

4                     The problem with the submissions of counsel is that they do not accord with the applicant’s evidence.  The statutory declaration, upon which the applicant relied, set out the tragic course of events that had beset her as a mother of Tamil children resident in Jaffna.  Indeed, the RRT concluded that on her evidence she could “be described as a refugee in the popular sense”.  However, the RRT added that the violence of Government forces was not directed at the applicant because she was a Tamil or for any other Convention reason.  Rather, it was said to be “an incident of warlike action directed at the rebel forces in which she found herself in the cross-fire”.  The RRT also said that while political assassination and intimidation may be rife in Sri Lanka, including Jaffna, “there is no evidence to suggest that 61 year old widows are at risk”.  Further, the RRT said that the history of the applicant’s freedom of movement throughout Sri Lanka and in and out of Sri Lanka suggests “that she was a person all sides of the conflict considered presented no threat to them”.  The RRT concluded that it would be a considerable hardship for the applicant to have to return to Sri Lanka but the handicaps which the applicant suffered “cannot justify a conclusion that the applicant faces a real chance of persecution for a Convention reason should she return to Jaffna, or indeed any other part of Sri Lanka”.

5                     Although the applicant initially relied on numerous grounds of review the grounds were refined at the hearing.  The main submission put was that the RRT had failed to comply with s 430(1) of the Migration Act 1958 (Cth) because the RRT did not deal, in its reasons, with whether the applicant had a well founded fear of persecution for a Convention reason.  The suggestion in the submission was that the RRT had failed to deal with a claim by the applicant of a well founded fear of persecution, as a Tamil, as a member of her family and as a perceived supporter of the LTTE.  If that submission were made out then it would constitute a substantial ground for challenging the decision of the RRT, not only on the basis that it failed to comply with s 430(1) but also on the basis that the RRT had failed to determine the substantial issues raised by the material and evidence before it: see Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63; Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182 at [37] and Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845 at [52].

6                     Counsel for the applicant was unable to point to any part of the evidence of the applicant or the other material that was before the RRT that contained a statement by the applicant that she feared persecution for any of the Convention reasons relied upon by her counsel.  The statements of the applicant related fundamentally to the hardship she would suffer on her return to Sri Lanka as a result of the conditions she would be required to confront in Jaffna.  As explained above, her evidence was accepted in that regard and, indeed, it led the Tribunal to view the applicant as a refugee in the popular, but not the Convention, sense.

7                     It became plain, in the course of the hearing, that Counsel’s submission necessarily required resort to the material before the RRT in order to understand whether the RRT had failed to deal with the substantive issues raised by the material before it.  Remarkably, the applicant’s legal representatives had proceeded with the case to trial, not only without seeking to rely on the transcript of the hearing before the RRT, but without having been aware of what was said by the applicant to the RRT.  I stood the matter down for a short time to enable the applicant’s legal representatives to ascertain whether the transcript was of assistance to the argument they were seeking to advance on her behalf.  When the matter resumed it became apparent that the transcript did not advance the submission sought to be put by the counsel for the applicant.  Two answers to questions asked by the RRT were relied upon, but they are consistent with the RRT’s findings that the applicant may have a general reason to fear harm if she returns to Sri Lanka but, that her fear is not for a convention reason.

8                     In the circumstances set out above the applicant cannot succeed on her review under Pt 8 of the Migration Act 1958 (Cth) because the material before the RRT did not sustain a case that any fear of persecution held by the applicant for a Convention reason was well founded.  In substance, the applicant had not given evidence of events which suggested that she had been or would be mistreated for a Convention reason.  Accordingly, the applicant’s claim failed to meet the requirement, at the objective level, of a well founded fear of persecution for a Convention reason.

9                     In so far as the applicant’s claim relied on a generalised fear as a Tamil in Sri Lanka from Jaffna or whose children had been associated with the LTTE in the mind of the authorities, the RRT found that fear of persecution on those grounds was not well founded.  In so finding the RRT gave reasons for its conclusions which related basically to the fact that there was no relevant history of any mistreatment of any kind against the applicant by reason of those matters and, therefore, there was no basis upon which the RRT could find that any such fear of what might happen to her on her return was well founded.

10                  It was also submitted that the material with which the RRT was required to deal included the submissions of the applicant’s representative.  Thus, where the representative claimed that there had been a deliberate targeting of civilians in Jaffna by government forces it was said that the RRT was required to deal with that claim notwithstanding that there was no evidence or material to support the claim as a matter of fact.  The submission, for which no authority was cited, is unsustainable.  Although the RRT is required to have regard to all of the material and evidence before it (see Singh at [52]) that requirement relates to material and evidence from which the material facts are to be found rather than submissions of representatives as to what those findings ought to be.

11                  It follows from the foregoing that the application for review in the Court is to be dismissed.

12                  The present case presents as a very sad and tragic story which would involve the return of a 63 year old widow to Jaffna, after almost five years with at least two of her children in Australia, in circumstances where she is the only remaining member of her immediate family in Jaffna.  Further, it appears that her house has been damaged during the war so she may have no residence to which she can easily return.  Undoubtedly, it was that situation that led the RRT to consider her to be a refugee in the popular sense.  Counsel for the Minister, in the course of submissions, recognised the situation confronting the applicant and indicated that there are two categories of visa that might enable the applicant to stay with her family in Australia.  Of course, those matters are not relevant to the outcome of the present application.  Nevertheless, it is appropriate to emphasise that, in the present case, compassionate and humanitarian circumstances have been found to exist by the RRT and it

appears to me that those circumstances could warrant special consideration in so far as the Act and the Migration Regulations would permit that to occur.

Associate:

Dated:              26 July 2000