FEDERAL COURT OF AUSTRALIA

Pannasara v Minister For Immigration & Multicultural Affairs [2000] FCA 1331

MIGRATION – protection visa – whether refugee review tribunal in error of law – whether tribunal incorrectly interpreted the law – whether tribunal breached procedural requirements – whether no evidence to justify the making of the decision – whether tribunal reasons inadequate

Migration Act 1958 (Cth) s 476

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, applied

Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611, applied

Applicant A v Minister for Immigration & Ethnic Affairs (1997) 142 ALR 331, applied

Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379, applied

Minister for Immigration, Local Government & Ethnic Affairs v IRT (1993) 41 FCR 71, followed

Tharairasa v Minister for Immigration & Multicultural Affairs [2000] FCA 520, followed

Tuli v Minister for Immigration & Multicultural Affairs [1999] FCA 271, applied

Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845, followed

REVEREND KAHATAPITIYE PANNASARA v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W 36 of 2000

R D NICHOLSON J

13 OCTOBER 2000

PERTH (Heard in Sydney)

THE COURT ORDERS THAT:

1.                  The application for review be dismissed.

2.                  The applicant pay the respondent’s costs of the application.

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

REASONS FOR JUDGMENT

1                     The applicant seeks review of a decision made by the Refugee Review Tribunal (“the Tribunal”) on 4 February 2000 affirming a decision of the respondent’s delegate to refuse to grant the applicant a protection visa pursuant to the Migration Act 1958 (Cth) (“the Act”). The application for the protection visa was lodged on 3 March 1999.  The delegate’s decision was made on 13 May 1999.

2                     The applicant is a Sri Lankan Buddhist monk.  His claim before the Tribunal was that he feared persecution within the terms of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (“together the Convention”) on the basis of his religion (Buddhism); his political opinion (support for the United National Party); and his membership of a particular social group (the Sinhalese).

The relevant legislative provisions

“Under s 36(2) of the Act a non- citizen in Australia is eligible for a protection visa if that person is someone: “… to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.”  The Refugees Convention is the Convention Relating to the Status of Refugees 1951 and the Refugees Protocol is the Protocol Relating to the Status of Refugees 1967.  The expression “Convention” will be used to mean the Convention as amended by the Protocol.

Article 1a (2) of the Convention defines a “refugee” to be 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 as a result of such events, is unable or, owing to such fear, is unwilling to return to it”.

Tribunal’s findings

3                     The Tribunal had before it the file of the Department of Immigration and Multicultural Affairs; written submissions on behalf of the applicant; and the applicant’s oral evidence before the Tribunal.  The written submissions were over five hundred pages in length.  The numerous issues raised by the submissions were summarised in a table of contents set out in the Tribunal’s reasons.

4                     The findings of the Tribunal were as follows:

(1)               The applicant holds a subjective fear of returning to Sri Lanka.

(2)               The applicant readily assumed that others were out to harm him when other, more innocent, explanations were plausible.  He had a demonstrated capacity to be suspicious of others.  There was therefore a question whether his fear was objectively well-founded.  The fact that the applicant had found conspiracies in so many places and from so many sources raised the question, in the view of the Tribunal, of whether the applicant’s fear was exaggerated.

(3)               As to the applicant’s political activity, he had been a politically active figure from his student days until he left Sri Lanka.  He had made both friends and enemies within the Buddhist religious community as well as in political circles.  He had been a politically aware and interested person who gave strong support to one particular political party, namely the United National Party (“the UNP”).

(4)               Concerning his support for the UNP:

(a)                The applicant has been an open supporter of the UNP.  He has given a long list of particular advice to various UNP politicians on party and government policies and processes.

(b)               As the UNP has now lost power, he has lost influence with government.  However, that would not mean he could not continue his relationship with the UNP if he returned to Sri Lanka.

(c)                Another reason for the applicant having suffered a diminution of influence was that he has been long absent from the scene in Sri Lanka.

(d)               His diminution in influence also follows from a conviction in Australia on sexual assault charges and a consequential prison sentence.

(e)                He will not be equipped to return to a position of influence in the UNP and in that sense is not a target for attack for being in such a position.

(5)               The applicant has been a target of groups in Sri Lanka over a great length of time.  According to his claims the threats emerged as early as the 1970s and continued up until he left the country in 1990.

(6)               The Tribunal was not satisfied he was a constant target of violence.  There were numerous opportunities for harm to be done to him but, apart from one incident, he remained unscathed.  It considered it implausible that all the alleged assassins would be so inept as to so frequently miss their target.  All the claimed death threats and attempts on his life were found not to be real.  The conspiracies he claims have been mounted against him over at least a twenty-year period were not accepted.

(7)               As to the applicant’s claim that one of the major sources of threat to him in the past and into the future is the Janatha Vimukthi Peramuna (“the JVP”), the Tribunal found as follows:

(a)                The applicant warned fellow monks and others against the JVP.

(b)               Various conspiracies alleged by the applicant against him from JVP sources were not accepted.

(c)                His mother was seriously injured and died of her injuries in an attack in July or August.  There is not sufficient evidence to support his claim to have been a target or the target at this time.

(d)               In August 1989 the applicant was threatened and harmed, possibly by JVP terrorists.

(e)                The JVP has no reason to seek to eliminate the applicant.  He has been absent from the Sri Lankan political scene for ten years.  There have been substantial changes to that political landscape since he left.

(f)                 The applicant’s fears that he will be subjected to JVP violence on his return to Sri Lanka are not well-founded.

(8)               As to the applicant’s claims to have a fear of persecution by the Liberation Tigers of Tamil Eelam (“the LTTE”) the Tribunal found:

(a)                The applicant as a Sinhalese and Buddhist is, in a general sense, of the class of persons whom the Tamil Tigers regard as their oppressors.

(b)               The tactics of the Tigers do not mean all Sinhalese Buddhists are their targets.

(c)                The applicant could locate himself in one of the many Buddhist temples outside the range of the LTTE.

(d)               The applicant is not a special target of the LTTE for reasons of his class or group and on return would join the general population which has experienced widespread violence in a complex communal conflict.

(e)                There is lack of substance in the applicant’s claims to be a specific target of the LTTE.  His claims involve exaggerations and elaborations.  He has not been targeted in the manner he has claimed.  He is not a person sought out by the LTTE and marked by them as an opponent.

(f)                 He does not face a real chance of persecution by the LTTE for a Convention reason.

(9)               As to claims by the applicant that he was persecuted by security agencies:

(a)                There is convincing independent evidence that the police, army and other security agencies of Sri Lanka are the source of human rights abuses of those in their custody and may also have been the source of assassinations of some well-known and influential figures.

(b)               The Tribunal accepts that as a consequence of the applicant’s role in a panel in a Maharangama Police Division in 1983, the panel’s reports were unwanted by some members of the police force and the government was interested in suppressing information.

(c)                The Tribunal was not satisfied of the applicant’s account of consequent threats and attacks on him from this source in succeeding years or that he was pursued by a section of the police force over that period of time.

(d)               The Tribunal did not accept his claim to have been the object of an abduction attempt while living at an army camp prior to leaving Sri Lanka.  He had invented or imagined this and related incidents.

(10)           In relation to his exit from Sri Lanka:

(a)                It was not established that he had, as claimed by him, fled the country in a great hurry.

(b)               Nor is it established that he was advised by the Minister of Defence to flee the country.

(c)                He left Sri Lanka legally and openly.

(d)               His claim to have moved from country to country because he was fearful of attacks on him was not established.  Nor was it established he was under threat from either JVP or LTTE activists in Thailand, Singapore and Malaysia as he claimed.  These were found to be further examples of the applicant’s propensity to find conspiracies in many places. 

(11)           As to the attitude of the present government to the applicant:

(a)                The Tribunal was not satisfied the applicant, having been outside the country for some years and with a prison record, would be able to convince others that he was in a position to lead a political party.

(b)               The applicant has no present political profile which would lead to the current government taking action against him.  He has no continuing political influence.

(c)                The applicant had sought protection from his government which had responded responsibly and this indicated it had neither abandoned him nor intended him harm.  The current government is not a source of harm or intended harm amounting to persecution against the applicant.

(d)               His claims that the government or some of its members have plotted to have him deported and/or murdered were rejected as fanciful.

(12)           As to claims of conspiracies against him in Australia:

(a)                The applicant had a strong belief he is the victim of malicious mischief by conspirators in Western Australia and Sri Lanka in which both the JVP and LTTE were involved.

(b)               While the applicant has claimed to be in fear for his life from various people in Western Australia, he did not take the opportunity of remaining in Brisbane, Sydney or Melbourne or places he visited by invitation in 1993.  Nor did he take up advice while in Brisbane that he seek refugee status while he was in that city. 

(c)                The applicant’s claim that he was urged to write a letter to the LTTE leader supporting the assassination of a president is fanciful and implausible.

(d)               His claim that his opponents in Western Australia went to the extent of murdering three local young women in order to implicate him and cause him harm is without foundation and casts doubt on the genuineness of other conspiracy theories he has put forward.

(e)                He has imagined or invented claims that there were plots against his life while he was in prison or by officers of the Department.

(13)           As to the claim by the applicant that he intended to return to Sri Lanka as soon as he was assured it was safe to do so, that does not fit well with his actions which indicate no such intention to return.

(14)           The circumstances of an attack on a temple with which the applicant has a special relationship was not related to the applicant being the real target.

5                     The Tribunal said it was also to be born in mind in assessing the evidence and the applicant’s future, that, as a consequence of his conviction and imprisonment, his ability to influence people is much reduced.  His ability to be a significant religious figure in Sri Lanka has been harmed.

6                     The Tribunal concluded its reasons with the following statement:

“The Tribunal has considered carefully the range of information provided by the Applicant and his version of the meaning of various incidents.  It finds his claims to be exaggerated and often implausible.  He demonstrated a capacity to believe that many people were in conspiracy against him and has retained the support of some people who have given evidence in his behalf.  However, the Tribunal is not satisfied that his claims are well-founded.  It has accepted that he was an active participant in public, political and Buddhist matters prior to leaving Sri Lanka.  It has accepted that the situation in Sri Lanka is still one where there is both random and targeted violence.  However, it is not satisfied that the Applicant is in a position to play any public part in Sri Lanka should he return there.  His long absence and the undermining of his reputation, the change of government and the altered situation of the JVP lead to a conclusion that he does not face a real chance of persecution should he return.  The Tribunal has considered his claim in their singuuarity (sic) and cumulatively and is satisfied that his fear of persecution for the reasons he has claimed is not well-founded.

Whether decision involved an error of law being an incorrect interpretation of the applicable law:  s 476(1)(a) of the Act

Interpretation of “well-founded fear”

7                     This ground arises as the first limb of the first ground of appeal.

8                     It is particularised with reference to a failure by the Tribunal of a threefold nature, namely, firstly, to apply the correct interpretation of the definition of “refugee”.  Secondly, a failure to apply the correct interpretation of the phrase “owing to a well-founded fear of being persecuted for reasons of race, religion, membership of a particular social group or political opinion”.  Thirdly, misinterpreting the phrase “well-founded”.  These particulars relate to the relevant provisions of the Convention.

9                     The case for the applicant was pressed in written submissions filed by amicus curiae.  As pressed, this ground commences with a submission that the Tribunal erred in reproducing only a very small portion of the submissions for the applicant before it on the interpretation of the phrase “well-founded fear of being persecuted” and gave brief reasons on the matter.  This is said to have been in error of law as “insufficient and most inadequate”. 

10                  The argument made for the applicant essentially refers to a sentence in the Tribunal’s reasons (forming part of a paragraph on ‘well-founded fear’) heading “a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.”  It is submitted this statement, when compared with the relevant position of the judgment of the High Court in Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 389 and 429, shows the Tribunal did not understand the chance of harm may be very little provided it is real.  See Chan at 429 approving Immigration & Naturalization Service v Cardaye-Fonseka 480 US 421 (1987) at 440 per Stevens J.  I agree with the submission for the respondent that this neither establishes that the Tribunal’s reasons were “insufficient and most inadequate”, nor provides any basis at law for the finding of error of law.  The Tribunal’s explanation of the requirement that an applicant’s fear of persecution for Convention reasons must be “well-founded” shows it correctly interpreted the requirement.  It is not the case that the Tribunal narrowed down the Convention definition.  It showed familiarity with the relevant law in a general statement and was not required to more fully develop the elements of that law.  Nor do the reasons of the Tribunal as subsequently developed evidence the alleged misinterpretation.

11                  The submissions for the applicant also address a paragraph of the Tribunal’s reasons concluding with the statement “it follows that whenever the protection of the country of nationality is available, and there is no ground based on well-founded fear for refusing it, the person concerned is not in need of international protection and is not a refugee”.  For the applicant it is submitted this statement added an additional burden upon the applicant “to find a ground based on well-founded fear before he can refuse to avail himself of the protection he is fleeing from”.  It is submitted this is not a requirement of the Convention.  I agree with the submission for the respondent that this statement by the Tribunal did not raise the standard of proof in relation to the Convention definition “well-founded fear” or impose any new burden on the applicant.  Nor does it demonstrate any misinterpretation by the Tribunal of the expression “well-founded fear”.

12                  Other submissions for the applicant on the alleged misinterpretation of the expression “well-founded fear” do not in reality do more than seek to attack the merits of the Tribunal’s decision.  Such merits do not lie within the jurisdiction of this Court on the application:  Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

13                  At other parts of the written submissions for the applicant it is alleged that in relation to the concept of “well-founded fear” the Tribunal acted unreasonably, unfairly, illogically and contrary to substantive justice embodied in s 420.  It is established that a breach of that section is not a “failure to observe procedures” within the meaning of s 476(1)(a) of the Act and so lies beyond the Court’s jurisdiction:  Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611.

Interpretation of “persecution”

14                  The submissions for the applicant then turned to the approach of the Tribunal that the applicant remained unscathed so that he could not have been the target of the assassins he alleged.  The submissions for the applicant interpret this as placing a burden on the applicant to prove why he was not killed or maimed by the persecutors.  This was said to clearly constitute a narrowing down of the definition of the word “persecution”.  These submissions are also grounded on the Tribunal’s findings of some of the applicant’s claims being exaggerated and implausible. 

15                  In my opinion the Tribunal did not misunderstand the concept of “persecution”.  Its reasons referred to the primary meaning of the term as stated in Applicant A v Minister for Immigration & Ethnic Affairs (1997) 142 ALR 331 at 375 per Gummow J and other citations from Chan at 388.  The reason the applicant’s claim to have a well-founded fear of persecution was rejected was not due to any misinterpretation of the term “persecution”.  It was founded on the finding of the Tribunal that the persecution he subjectively feared was not “well-founded”.  I agree with the submission for the respondent that there is nothing in the Tribunal’s reasons to demonstrate that it misinterpreted the term “persecution” by applying an incorrect interpretation to the evidence and material before it.  Rather it found the existence of a subjective fear in the applicant to exist, but based its decision on its lack of satisfaction that such fear was “well-founded”.

Whether decision involved an error of law being an incorrect application of the applicable law:  s 476(1)(a) of the Act

Effect of delay in making application

16                  Next it is submitted for the applicant that the Tribunal, having had the applicant explain the delay in the making of the application, could not have used the fact of delay to conclude there was no well-founded fear from persecution.  Having done so, it is submitted, the Tribunal misapplied the definition of well-founded fear in the Convention.

17                  The Tribunal used the factor of delay in two ways.  The first was that it considered the delay did not fatally undermine the applicant’s claims to have a strong fear of returning to his own country.  Secondly, it considered the delay was a factor in considering whether, seven years after his arrival in Australia and almost ten years since he left his country, his claim for protection from persecution was well-founded.  Considered in the context of the Tribunal’s subsequent reasons, I agree with the submission for the respondent that this latter statement demonstrates only that the delay by the applicant was relevant in that events that had occurred in Sri Lanka in the intervening years covered by the period of delay were required to be taken into account.  That was also true in relation to the applicant’s personal history during that period.

Failure to use word “race” or “Sinhalese”

18                  It was contended for the applicant in the reply to the respondent’s case that the failure of the Tribunal to use the words “race” or “Sinhalese” shows it did not understand or incorrectly applied the concept of persecution.  I have already found the Tribunal did not misunderstand the concept.  However, the submission now made is said to demonstrate that the Tribunal did not consider the dangers the applicant now faces from Tamil Tigers because he is Sinhalese.

19                  The applicant’s claims included one based on his membership of a particular social group, namely the Sinhalese.  The Tribunal dealt with the claims as made to it.  The reference to the applicant being a Sinhalese was a reference to his race.

Failure to observe procedures:  s 476(1)(a)

20                  The second ground of appeal is that procedures required by the Act or the regulations made under the Act to be observed in connection with the making of the decision in respect of the applicant were not observed.  This ground is based on a purported application of the provisions of s 420 of the Act.

Inquisitorial role of the Tribunal

21                  The first particular in this ground is that the role performed by the Tribunal as an inquisitorial/accusatory body was unfair and unjust and tended to cause the Tribunal to arrive at incorrect conclusions.  This is supported by reference to Minister for Immigration, Local Government & Ethnic Affairs v IRT (1993) 41 FCR 71.  There Keely J held that the previous ss 123 and 132(6) of the Act did not prevent the Tribunal from conducting its proceedings in an adversarial, as distinct from an inquisitorial, manner.  These former provisions of the Act in relation to the Immigration Review Tribunal are now mirrored by provisions of ss 420 and 427(6) of the Act in relation to the Tribunal.

22                  It is also submitted for the applicant that as the decision of Keely J was not considered or cited by the High Court in Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611, what was there said in this connection was only obiter.  The submission for the applicant is that the inquisitorial procedure followed by the Tribunal was not the type of procedure suitable under s 420 for this proceeding so that the Tribunal followed a procedure forbidden by that section.

23                  These submissions cannot be accepted.  In Eshetu the High Court held that the requirements of s 420 of the Act do not constitute “procedures” for the purposes of s 476(1)(a) of the Act.  Even if the Tribunal followed an inquisitorial procedure and breached the requirements of the section that would not give rise to a ground of review under s 476(1)(a).

24                  Furthermore, Keely J went on to state that there was no obligation on the Tribunal in the IRT case to follow the courses he had outlined.  While the Tribunal here could have conducted the proceedings before it in an adversarial manner, it was not obliged to do so, so that there was no relevant failure for the purposes of s 420 of the Act.

25                  The first particular concludes with the words “it also caused an apprehended bias”.  This is a reference back to the procedures just discussed.  No case of actual bias was pressed in the submissions for the applicant.  A case of an apprehension of bias is not within the jurisdiction of the Court to review:  s 476 of the Act.

Use of material not available to applicant

26                  The second particular in support of this ground is that the Tribunal, in referring to reputable and independent sources, used material not available to the applicant so that there was thereby a denial of a full and proper hearing to the applicant.

27                  As pressed in written submissions, it is claimed for the applicant that the Tribunal’s reference to independent country information concerning Sri Lanka should not have been used because it breached the basic procedural fairness envisaged by s 420.  The particular is also pressed in the alternative under the no evidence ground dealt with below.

28                  Section 420 of the Act does not require the Tribunal to refer to every piece of country information which it obtains with respect to an application.  The obligation on the Tribunal to give information to an applicant is governed by the provisions of s 424A of the Act.  This provides the Tribunal must “give to the applicant… particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review” and “invite the applicant to comment on it”.  That obligation is “subject to subs (3)” which provides the section does not apply to information “that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member.”  Country information is of this character so that the section has no application in respect of it.  I am reinforced in that view by reference to the reasoning of Carr J in Tharairasa v Minister for Immigration & Multicultural Affairs [2000] FCA 520 at par 16.

29                  In light of the decision of the High Court in Eshetu, even if the Tribunal acted contrary to the requirements of s 420, there would be no breach of procedures for the purpose of s 476(1)(a) so that there would be no jurisdiction in this Court to review the application on that ground.

No evidence:  s 476(1)(g) and (4)

30                  The third ground on which review is sought is that there was no evidence or other material to justify the making of the decision.  This seeks to invoke the Court’s jurisdiction pursuant to s 476(1)(g).  That ground can only be made out if there is compliance with either of the paragraphs of s 476(4), which will be considered in the course of addressing the arguments for the applicant on the matter.

31                  The first element pressed under this ground is in relation to the provision of independent country information (already addressed as particular two to the second ground).  The further argument made in relation to it is that as such information was not made available to the applicant the Court should conclude there was no evidence or material on that to justify the decision and hence a breach of s 476(1)(g).  These submissions cannot satisfy either of the requirements of the paragraphs of s 476(4).  It is simply not open to conclude there was no evidence in the way contended for the applicant.

32                  In further submissions for the applicant under the no evidence ground a reference is made to five matters being conclusions reached by the Tribunal.  The matters were:

(1)               the LTTE is not noted for its sophistication in its assassinations

(2)               if the applicant returned to Sri Lanka he would not be a special target for reasons of his class or group

(3)               the manner of the applicant’s departure from Sri Lanka did not support his claim he was advised by the Minister of Defence to flee the country

(4)               the reputation of the applicant has been affected by his convictions

(5)               the applicant would not be in a position to play any public part in Sri Lanka should he return there.

33                  It is not enough that the applicant could show that the Tribunal made its decision based upon the existence of a particular fact which did not exist.  It is incumbent on the applicant also to establish there was no evidence or other material to justify the making of the decision:  Tuli v Minister for Immigration & Multicultural Affairs [1999] FCA 271 at par 25. 

34                  There was evidence in respect of each of the above conclusions.  Conclusions (1) and (2) were arguably supported by the country information before the Tribunal.  Conclusions (3) to (5) were reached by the Tribunal from evidence before it concerning the manner of the applicant’s departure from Sri Lanka and the fact of his convictions.  The submission really seeks to challenge the merits of these conclusions reached by the Tribunal.

35                  The first particular under this ground refers to a conclusion that the applicant had an obligation not to involve himself in corrupt practices.  This was not pressed in submissions for him.

36                  The second particular given in support of the no evidence ground is that the Tribunal arrived at conclusions that the JVP, the LTTE and the security agencies and the present government would persecute him against the weight of the evidence.  Such a particular cannot be maintained as it would involve the Court in impermissibly weighing the merits determined by the Tribunal.

Failure to give adequate reasons

37                  In written submissions it is also claimed for the applicant that the Tribunal failed to give adequate reasons for its conclusions in relation to certain matters so that it failed to comply with s 166E of the Act.  The equivalent of that section is now s 430.  The responsibility to give reasons pursuant to that section was recently considered by the Full Court in Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845 at par 62 where it was said:

“…we should emphasise that the adequacy of reasons for decision … must depend upon the circumstances of each case, but that fundamentally the reasons need to reveal to the parties why the decision went the way it did.”

38                  In my opinion the Tribunal, having set out its reasons in some considerable detail as appears from the summary above, gave reasons which met the requisite standard.

Conclusion

39                  For the above reasons I consider that the application for review should be dismissed.

Associate:

Dated:              13 October 2000