FEDERAL COURT OF AUSTRALIA

Rasaiah v Minister for Immigration & Multicultural Affairs [2000] FCA 1371

IMMIGRATION – failure by the Tribunal to make and set out findings on a matter of fact objectively material to the decision

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

Najarian v Minister for Immigration and Multicultural Affairs [2000] FCA 933

Migration Act 1958 (Cth) s 430(1)

CHARMAINE VANAJAH RASAIAH V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 472 OF 2000

JUDGE:                         BEAUMONT J

DATE OF ORDER:      31 AUGUST 2000

WHERE MADE:          SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be allowed.

2.                  The decision of the Tribunal be set aside.

3.                  The matter be remitted to the Tribunal for reconsideration in accordance with law.

4.         The respondent pay the applicant’s costs.

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

REASONS FOR JUDGMENT

BEAUMONT J:

1                     Before the Court is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).  A short history of the matter is that the applicant arrived in Australia on 31 December 1998.  She lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs (“the Department”) on 11 February 1999.  That application was refused by a delegate of the Minister on 12 March 1999.  The applicant then sought review of that decision by the Tribunal.  By decision made on 29 March 2000 the Tribunal affirmed the decision not to grant the protection visa.  The applicant arrived in Australia accompanied by her spouse, who also applied for a protection visa, however that matter is no longer before the Court. 

2                     In order to understand the issues that arise in the application for judicial review, it will be necessary to explain how the Tribunal went about its task.  The reasons of the Tribunal commence with a description, as the Tribunal understood it, of the applicant’s case.  The Tribunal had earlier noted that the applicant is a twenty-six year old female citizen from Sri Lanka.  In describing her case, the Tribunal said that she claimed that she was a Christian Tamil who had been born in Kandy, in the Central Province of Sri Lanka, and that she was married to a Pakistani national in Sri Lanka in December 1998, having had a de facto relationship with him in the Maldives Republic for some two and a half years.  The Tribunal noted that she said she was an administrative assistant/secretary and had worked in that capacity in the Republic of the Maldives between 1996 and 1998.  Prior to that, she claimed she had worked as a secretary in Sri Lanka. 

3                     The Tribunal noted that the applicant claimed that when she was young there were riots in Sri Lanka in 1977 and 1983;  and that her parents had taken action to save their lives from being taken by ethnic Sinhalese intent on harming Tamils.  She claimed that her parents’ property had been looted in 1983 and that her family had had to disguise themselves as Muslims in order to escape.  She said that her parents were injured trying to protect them but they had effected their escape.  The applicant stated that her father had taught in a prestigious school and was an accountant at a university but had been denied promotions because he was a Tamil. 

4                     She said that her family members had been harassed because they were Tamil and they had been victimised by Sinhalese landlords to the extent that they had had to change houses about fifteen times.  She said that her uncle was arrested in late 1987 after a nearby explosion.  She said earlier in 1987, on the evening of the applicant’s thirteenth birthday, the police had raided the family house;  they had assaulted the guests and took them to the police station for questioning.  They were released the next day but her parents were warned that they would be arrested if they accepted guests without first registering them with the police. 

5                     The applicant stated that a mob comprising members of an organisation known as Janatha Vimukthi Peramuna (JVP) had attacked them at the house in 1989 and had injured her father, who remained ill after that date and was bed-ridden until his death in 1992.  She said that the JVP was rebelling against the Sri Lankan government and had a practice of summarily executing their opponents by brutally injuring them.  She said that the government had responded in kind and she said that she herself had witnessed the victims of some of these attacks.  She said that the JVP extorted money and valuables from the applicant’s family.  She said her brothers were accused of associating with the JVP and had been assaulted by police.  She said that her mother had been abused and assaulted when she went to the police station to vouch for them.  The applicant said that in 1991 one of her brothers disappeared and did not return until 1998. 

6                     She said that earlier in 1992 her mother went to the Maldives to work in order to support the family and pay her husband’s, that is, the applicant’s father’s, private medical bill.  She said that her eldest brother went to Colombo soon afterwards to find employment but was arrested and that their mother had come back from the Maldives to organise his release.  Her mother then returned to her employment in the Maldives Republic.  The applicant said that in the meantime she and another brother cared for their father until he died, as mentioned, in 1992.  She said that her mother returned from the Maldives for the funeral and then went back to the Maldives to resume her employment.

7                     Soon afterwards, she stated, her brother went missing and inquiries made of the police were ignored.  Several days later she said he was found at the door of the family house.  The applicant said that she then realised he was paralysed.  She said that he explained that he had been beaten by police but could not remember anything after that.  She took him to a hospital but could not obtain treatment because he was a Tamil and the hospital was a public one.  She therefore, she said, took him to a private hospital.  She then looked after her brother until he died in 1994.  During this period the applicant said her mother returned from the Maldives from time to time to help care for the applicant’s brother and make financial and medical arrangements about his care.  Her mother was with her son when he died.

8                     The applicant said that the brother who worked in Colombo also made frequent trips to Kandy to assist in caring for their brother but that he was often stopped, questioned and abused en route.  She stated that she was also harassed by Sinhalese people and was once followed by four men who tried to kidnap her.  She said that she only averted serious harm because she had been assisted at the time by some Tamil boys she knew who had waited at her house.  She said that after her brother’s death she obtained work in Colombo and lived there with an uncle who has since come to Australia.  She said she returned to Kandy on weekends because Colombo was unsafe and stayed with an elderly friend in Kandy who provided protection for her. 

9                     She said that on one occasion when in Colombo, the Sinhalese surrounded her uncle’s house and demanded that the applicant and her brother be sent out as Tamil terrorists.  However, she said her uncle was able to convince the Sinhalese that they were not in the house.  She said that on another occasion some people came to the Kandy house and asked after her but her elderly friend had managed to divert them.  She said that when she travelled between Colombo and Kandy she was often harassed.  She said that she had been detained and questioned overnight on several occasions. 

10                  The applicant said that the tensions in Sri Lanka had increased and that she felt increasingly insecure there.  Accordingly, she said she arranged to take a job in the Maldives herself.  In that connection, she met the man who was her boss and who later became her husband.  She said they travelled to Sri Lanka on business on several occasions and the applicant was interrogated at the airport because she was a Tamil.  She said that once a police clearance was demanded, although she had been living in the Maldives.  She said that her boss had had to pay a bribe to get the clearance so that they could catch their flight. 

11                  The applicant said that in January 1998, she was in Colombo on business and she went to Kandy because her mother had coincidentally returned at the same time and the brother who had disappeared mysteriously in 1991 had suddenly reappeared.  Whilst she was in Kandy on this occasion, there was a terrorist attack on the Buddhist temple of the Tooth in that city.  Tamils were accused, she said, of that attack.  She said that she and her mother were intercepted and abused when they went to confirm their return flights to the Maldives.  She said that eventually they had to arrange for a solicitor to help them.  She said that night a Sinhalese mob surrounded the house and then broke into it and looted the family belongings.  She, her boss, her mother and other family members managed to escape out the back door. 

12                  She determined, she said, never to live in Sri Lanka again.  She returned to the Maldives.  She did, she said, make several visits to Sri Lanka in 1998:  twice for business reasons;  once to collect her visa to Australia;  and in order to marry in late 1998, as previously mentioned.  On those visits she said she could not see her brothers because they were unable to live at the ancestral family home and were forced to move around, living in friends’ houses.   She said she had had no contact with them since she last saw them in early 1998.

13                  Her husband returned to Pakistan in October 1998, she said, and settled family matters with his former wife and her family as well as his own family.  However, she said that her husband’s family does not accept her marriage and has threatened her, should she go to Pakistan.  The applicant said that she fears that she will be remanded by police if she returns to Sri Lanka.  She says that she has endured a lot of discrimination and abuse and has faced the death of her father and her brother.  Two other brothers are suspected of LTTE connections;  and she has been constantly interrogated about links with the LTTE whilst she has travelled in Sri Lanka or between Sri Lanka and the Maldives.  She said that she has been traumatised by a history of harassment and said that all Tamils are suspected of links with the LTTE.

14                  The Tribunal went on to describe the legislative framework and gave an explanation of the meaning of the terms of the Convention.  In accordance with the central course of authority, no question arises in this connection for present purposes.  The Tribunal then proceeded to make its findings. 

15                  The Tribunal stated that it accepted that the applicant is a Sri Lankan national;  that she is a Christian Tamil who lived in Kandy;  that her spouse was a national of Pakistan;  and that they were both outside the countries of their nationalities.  The Tribunal said that the applicant’s description of communal riots in 1977 and 1983 was consistent with independent information.  The Tribunal had no doubt that the applicant’s family had been affected by them as she had recalled.

16                  The Tribunal also accepted that there had been some restrictions on the opportunities available to the applicant’s father because of his ethnicity.  The Tribunal accepted that the applicant’s family had been exploited by Sinhalese landlords and had to frequently move, although some of the disputes with landlords, the Tribunal found, related to matters which did not bear upon the Convention protection.  The Tribunal concluded, however, that the period of harassment by Sinhalese landlords had finished by early 1990.  The Tribunal said that the period prior to this coincided with the JVP uprising and its suppression by government forces.  The Tribunal noted that it was in this time that the applicant’s uncle was arrested (in 1987), her father was attacked (in 1989) and that JVP members had otherwise harassed the applicant and other members of her family.

17                  The Tribunal noted that the JVP was a nationalistic Maoist group that resorted to widespread violence to pursue its chauvinistic aims.  The Tribunal found that in 1988 to 1999 the Sri Lankan government and the JVP became involved in escalating violence in reaction to various political developments, including the inability to control the LTTE separatists in the north and the north east.  At this time the Tribunal noted the Sri Lankan government’s invitation to the Indian Peace Keeping Force to bring the LTTE under control.  The consequences, the Tribunal noted, were a campaign of terror with widespread deaths, injuries and arrests. 

18                  The Tribunal noted independent information that attacks by the JVP and vigilante groups had continued unabated in the first three months of 1989 with an estimated 2000 people killed.  The Tribunal noted that the JVP insurgency was met head-on by the Sri Lankan government and this massively violent government response, including the use of the secretive “Black Cats” death squad, was well documented.  The Tribunal noted that these death squads were believed to be made up of off-duty police and army personnel;  and that they had removed young people from their homes at night and the next day the bodies of some of these youths were discovered burned or mutilated.  The Tribunal noted independent evidence to the effect that by July 1989 death squad killings had reached several hundred a week;  that the violence terrorised villages as the innocent neighbours and friends of suspected JVP supporters were targeted;  that the untraceable death squads were free to torture and execute their victims;  but that the campaign had effectively eliminated the threat posed to the government by the JVP. 

19                  The Tribunal noted that the JVP’s leader and its deputy leader had both died in the custody of security forces in November 1989 with the consequence that the JVP’s effectiveness as a political force dissipated over the next few months.  The Tribunal said that, in these circumstances, it was satisfied that the difficulties encountered by the applicant and her family members between 1987 and 1989 were related to the JVP campaign and the government’s response.  The Tribunal was also satisfied that the JVP was effectively removed as a violent or threatening force by 1990 and therefore concluded that there was not a real chance that the applicant now faced persecution from that group or from Sri Lankan authorities who might suspect her of an involvement with the JVP.

20                  The Tribunal said that it was plausible that the applicant’s brothers were harmed as she described but noted that she remained in Kandy while her mother went to work in the Maldives.  The Tribunal further accepted that her brother had been assaulted by police in Kandy and that she looked after him and that she also cared for her father.  The Tribunal said that in this period, that is to say 1992, she was not harassed other than on the one occasion she believed that she was being followed but, as previously stated, she managed to avoid harm as four youths assisted her.  The Tribunal noted that it was plausible that when the applicant went to work in Colombo to live with her uncle, she had been stopped and questioned at security check points and that someone might have come to her friend’s house and asked after her in Kandy.

21                  The Tribunal went on to say:

 “However, it is a legitimate exercise of the power of the security forces to question citizens in the situation that prevails in Sri Lanka and she has not claimed she was mistreated when she was questioned.  She was not otherwise harassed in Colombo, although it is plausible that some Sinhalese youths told her uncle to send her outside to them.  The fact that she lived there for a significant period and those youths made that demand on only one occasion and did not pursue it, leads the Tribunal to conclude there is not a real chance she faces persecution at the hands of the Sri Lankan authorities or the Sinhalese population in Colombo.”

22                  The Tribunal then said that there was no reason to doubt that when the applicant went to the Maldives, she did feel insecure in the environment in Sri Lanka.  That environment, the Tribunal noted, was dominated by a war being conducted in the north and east of the country.  However, the Tribunal said:

“… her feelings of insecurity did not prevent her from returning to Sri Lanka on several occasions.  She may have been questioned on her return and even had to pay some bribes, but she was not persecuted on account of her race, religion or political opinion and she continued to make return visits without encountering any significant harm.

While she claims that all Tamils are suspected of links with the LTTE, her experiences in Sri Lanka and on her travels into and out of that country demonstrate that such suspicions have been dispelled after legitimate questioning.  She was not unduly harassed for that reason and the Tribunal is satisfied that she does not face a real chance of persecution for that reason in the foreseeable future.”

23                  The Tribunal said that the Tribunal itself had canvassed the situation of Tamils in many previous matters and had drawn the conclusion that they are not harassed for the reason of their race per se.  However, young newly arrived Tamils from the north and north east, particularly from LTTE controlled areas, may be at risk of harassment because they are suspected of affiliation with the LTTE, cannot communicate in Sinhalese or explain the reasons for their presence in Colombo, and have nobody to vouch for them.  The Tribunal then quoted from an assessment made by the United Kingdom Home Office Country Information Policy Unit in September 1999 as follows:

 “5.2.4There are estimated to be 150,000 Tamils from the north east in Colombo, in addition to the 250,000 Tamils who have been resident in the city for a long period.  Tamils coming from the north usually seek accommodation with acquaintances or relatives or in lodges.  The police and army periodically tighten up identity checks for Tamils in Colombo, partly on the street at checkpoints and roadblocks and partly through round-ups and searches of premises, especially at the lodging houses.  This takes place in particular following bombings carried out by the LTTE in Colombo from time to time.  The police search for LTTE infiltrators and especially the suicide squads.

5.2.5        Thousands of Tamils have been arrested, particularly in Colombo and the east, for suspected contact with the LTTE, and as part of security operations to prevent LTTE terrorists from infiltrating the city.  Amnesty International and the Refugee Council regard mass arrests of hundreds of Tamils at a time during cordon and search operations as arbitrary and indiscriminate. Amnesty reported that, according to official figures, 8,652 people were arrested in Colombo alone between July 1996 and July 1997.

5.2.6        Cordon-and-search operations are often carried out in areas with high concentrations of Tamils, including Tamil lodges.  These operations occur at irregular intervals and are intended to catch those missed by normal security measures.  Whether people are detained or not is determined by how well they can establish their reasons for being in the area.

5.2.7        A combination of fixed and moveable checkpoints is used in Colombo, the type, number and location dependent on the prevailing security situation.  The key issue at checkpoints is verification of identity and those who have Identity Cards with a Colombo address will pass more easily than someone whose ID Card shows a Jaffna address.  Crossing checkpoints may be a protracted process for those Tamils who do not speak Sinhala.

5.2.8        A large majority of Tamils are released within 24 hours or at least within 2 or 3 days after their identity has been checked, but some have been held without charge or trial for weeks or months and, according to Amnesty, are at risk of being subjected to torture.  According to information given to the Dutch Ministry of Foreign Affairs, 90% of detainees are released within 48 Hours, 6% within a week, 3% within 3 months and 1% have a 3 month detention order imposed.”

24                  The Tribunal went on to say that although the foregoing information related to Colombo, there was no reason to conclude that the profile of people suspected of affiliation with the LTTE is greatly different in Kandy, which is some 100 kilometres from the capital city.  The Tribunal said that, in any event, the applicant worked in Colombo for the two years before she went to the Maldives and visited Colombo on several return trips from the Maldives.  The Tribunal noted that the applicant came from Kandy, not from the north or north east;  that she is 26 years old and is married; that she has a history of working in Colombo;  that she speaks Sinhalese;  and that she had told the Tribunal that she had worked for a Sri Lankan firm that was in a joint venture with the Maldives government in her job in the Maldives.

25                  The Tribunal said:

 “Her frequent visits to Colombo indicate that she does not have a genuine and profound fear of persecution.  The fact that she has made those visits without encountering any serious harm demonstrates that she is not a person who has a real chance of being persecuted on account of affiliation with the LTTE, notwithstanding that her brothers may have been accused of such links.

It is plausible that the family house was looted before she left Sri Lanka for the last time, although her evidence and that of her mother (at her mother’s hearing) was that … the house had been deserted for a very long period.  That incident, taken in the context of the other claims made by the Applicant, does not suggest to the Tribunal that there is a real chance she faces persecution for a Convention reason.

The Applicant has endured some saddening events in the past, related to the JVP insurrection and suspicions that her siblings may be involved with the LTTE, and Ms. Pavlin’s report confirms that the Applicant has suffered from the consequences of past events.  However, apart form some minor incidents of harassment and the inconvenience of being subjected to legitimate security measures, she has not been significantly harassed at least since the JVP insurrection was put down in 1990 and has felt confident enough to live alone with her brother for a period, move to Colombo to work and then travel back to Sri Lanka on numerous occasions when she was working in the Maldives.

In light of the information before it, the Tribunal finds that the Applicant does not have a well-founded fear of persecution for the reasons she claimed or for any other Convention reason.  The Tribunal is not satisfied that she is a person to whom Australia has protection obligations under the Refugees Convention and Protocol and, therefore, she does not meet that criterion for the purposes of granting a protection visa.”

26                  In her application for judicial review, a number of matters are relied upon.  I have given, with one exception, anxious consideration to them but I have come to the view that I need not express any concluded opinion on them.  However, one particular matter was relied upon on behalf of the applicant and it is this.  During the hearing the following exchange occurred between the Tribunal member and the applicant:

 “RRT:             Okay, anything else you wanted to add?

Applicant:       I have a fear, sir, of going back because they always … or they come in search of Tamils and then they take you.  All through what I’ve gone that was before when I was 18 and now … or something.  But now I’m really scared to go back because I cannot escape from the FDT.  They’re searching for your people because all … you know … They take the girls as well and …

RRT:                My understanding is they don’t take Christian Tamils who are not interested in their cause.  It’s not in the interests of the LTTE to take people who oppose all of their policies.  It’s just creating a problem for themselves.

Applicant:       As I told you its not the Christian Tamil or anything.  My first name is a Christian name, Charmaine, but they don’t go with my first name, sir, as I told you before.

RRT:                No, but the Tamil Tigers know who it is they’re trying to recruit and you’re not a prospect for Tamil Tiger recruitment.

Applicant:       I don’t get you sir.

RRT:                I understood you to say that you think the Tamil Tigers will try to recruit you and what I’m saying is you’re not a real prospect for Tamil Tiger recruitment because you don’t agree with their view.  You don’t share their cultural or religious background.

Applicant:       … I don’t know about the culture of everyone, as I say, but they take all the youngsters and I’m already being suspected for being in the LTTE, having connection with them and giving information …

RRT:                As I understood that, you fear the Sri Lankan authorities and security forces because you say they suspect you of an association with the LTTE because you’re Tamil but I understood you to say just before you also fear the LTTE because you believe they might try and recruit you?

Applicant:       Yes …”

27                  It is submitted, on behalf of the applicant, that despite this claim being made, the Tribunal did not deal with it.  Accordingly, the applicant seeks to invoke the provisions of s 430 subs (1) of the Migration Act 1958 (Cth).  The operation of that provision was explained by the majority judgment given recently in the five Bench Full Court matter of Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 845.  The case stands for the following propositions: 

“l         a failure to comply with s 430(1) is a failure to observe procedures required by the Act to  be observed in connection with the making of a decision and therefore constitutes a ground of review under s 476(1)(a): see [43];

·                    s 430(1) does not impose any obligation on the RRT to prepare a statement disclosing a satisfactory process of reasoning leading to the decision it reached, although the RRT is obliged to set out its findings on any material questions of fact: see [44] and [47];

·                    there is no specific requirement in s 430(1) for the RRT to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding it made, although if one of the reasons which actually induced the RRT to come to its decision was that it decided to reject or place no weight on particular material, then s 430(1)(b) would require disclosure of that element of the RRT’s actual reasoning process: see [46];

·                    the RRT is under a duty to make, and to set out, findings on all matters of fact that are objectively material to the decision it is required to make.  Consequently, it must make findings on questions of fact ‘that are central to the case raised by the material and evidence before it’ or upon which the ‘decision, one way or the other, turns’, having regard to the process of reasoning the RRT has employed as the basis for its decision: see [48], [56] and [57];

·                    a requirement to set out findings on material questions of fact, and refer to the material on which the findings are based, is not to be translated into a requirement that all pieces of conflicting evidence relating to a material fact must be dealt with: see [56].  Accordingly, a failure to comply with s 430 is not made out by reason only of the failure on the part of the RRT to explain why it had not accepted and acted upon material which was contrary to the findings which it had made on an issue: see [56] and [64];

·                    fundamentally, on a fair reading, the reasons of the RRT need to reveal to the parties why the decision went the way it did: see [62].”

(see Najarian v Minister for Immigration and Multicultural Affairs [2000] FCA 933 at par 13.)

28                   It is submitted, on behalf of the applicant, that this claim was clearly articulated before the Tribunal.  It was made during the Tribunal hearing and therefore could not be said to have been abandoned.  The claim was not inconsistent with any other claims made by the applicant and was central to the question whether the applicant held a well-founded fear of persecution.

29                  It was also, the argument runs, consistent with the applicant’s claim, which was noted and accepted in part by the Tribunal, that she had left Sri Lanka because of increased tensions and because she felt insecure in Sri Lanka.  As has been noted, amongst other things, the case of Singh stands for the proposition that the Tribunal is under a duty to make and to set out findings on all matters of fact that are objectively material to the decision it is required to make.  Consequently, the Tribunal is bound to make findings on questions of fact “that are central to the case raised by the material and evidence before it” or upon which the “decision one way or the other turns”, having regard to the process of reasoning the Tribunal has employed as a basis for its decision. 

30                  In my opinion, those observations of the majority of the Full Court in Singh are squarely applicable to the present case.  The matter, as I see it, is self-evident.  The Minister attempted to meet the argument by submitting that the statements made by the applicant at p 15 of the transcript have no probative basis, that is to say, it was argued that these matters were not a live issue.  Reference was made to the circumstance that, in support of her original application to the Department, the applicant relied upon a very lengthy forty-three page statement of reasons for her fear of persecution.  It is true that in that lengthy statement the matter now relied upon may not have been articulated with the clarity that emerged at the Tribunal hearing.  However, at p 22 of the statement (at p 46 of the relevant documents book) the applicant certainly mentioned that when she travelled down to Sri Lanka from the Maldives in the course of her job commitments, her stay “lasted for a few days during which I always felt unsafe and insecure, despite being accompanied by my male non-Sri Lankan colleagues”.

31                  In my opinion, the applicant’s argument should be accepted.  The claim made and clearly articulated at the Tribunal hearing was not addressed, in any substantive sense, by the Tribunal although, as has been noted, passing references were made by the Tribunal to the possibility of younger Tamils being prevailed upon to join the LTTE.  For those reasons I am of the opinion that judicial review should be granted. 

32                  The order of the Court is:

1.                  Appeal allowed.

2.                  Decision of the Tribunal set aside.

3.                  Matter remitted to the Tribunal for reconsideration in accordance with law.

4.         Appeal allowed with costs.

Associate:

Dated:              October 2000