FEDERAL COURT OF AUSTRALIA

Mousoof v Minister for Immigration & Multicultural Affairs [2000] FCA 1522

MOHAMED DILSHAD MOUSOOF  v  THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V100 of 2000

RYAN J

MELBOURNE

20 OCTOBER 2000

THE COURT ORDERS THAT:

1.         The part of the matter remitted to this Court by the High Court 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                     On 23 November 1999 the High Court, constituted by Hayne J, remitted to this Court that part of a matter pending in the High Court in which the applicant sought a writ of mandamus, prohibition or certiorari or an injunction against an officer of the Commonwealth on the grounds that:

“(a)     the Refugee Review Tribunal ("the Tribunal") failed to observe the procedures that were required by the Migration Act (1958), Commonwealth ("the Act") or the regulations under the Act to be observed by the Tribunal in connection with the making of the decision challenged in these proceedings;

(b)       the Tribunal did not have jurisdiction to make the decision it did;

(c)        the Tribunal's decision was not authorised by the Act or the Regulations under the Act;

(d)       the Tribunal's decision involved an error of law, being an error involving an incorrect application of the applicable law or an incorrect application of the law to the facts, as found by the person who made the decision, whether or not the error appears on the record of the decision.”

2                     His Honour further directed that:

“Further proceedings in the part of the matter that is remitted to the Federal Court of Australia be as directed by that Court.”

3                     The applicant, a Sri Lankan citizen now aged 27, arrived in Australia on 30 September 1996 on a student visa issued on 18 September 1996.  On 4 February 1997 he applied for a protection visa.  That application was refused by a delegate of the Minister on 28 May 1997 and the applicant unsuccessfully sought a review by the Refugee Review Tribunal ("the RRT") of that refusal. 

4                     The evidence before the RRT established that the applicant is a Tamil Muslim.  The applicant's evidence was that he had been born in Badulla and moved with his family to Colombo in 1985.  He was educated there at the D S Senanayake College, which provided instruction through the medium of both the Tamil and the Sinhala languages.  The applicant undertook his instruction in Tamil.  He claims that before he left school an incident occurred in which a neighbouring house occupied by a Tamil Tiger intelligence operative was raided by security forces.  The Tamil Tiger operative committed suicide by swallowing cyanide.  Thereafter the whole neighbourhood was searched and all Tamils in the area were rounded up.  According to the applicant:

“The neighbours who lived next-door to us informed the police that there were a number of Tamil boys who visited our home on a very regular basis.  As a result of this information, the police searched our home and then took me to the police station for further questioning. 

... at the police station I was interrogated intensively about the boys who visited my home;  ... they refused to accept my answers and assaulted me in a brutal manner.”

5                     The applicant apparently amplified in his oral evidence to the RRT that part of his case and the RRT stated his claim in these terms:

“The Applicant claims that the next-door neighbours informed the police that there were a number of Tamil visitors to the Applicant's house and it is for this reason that he was taken to the police station for questioning.  He was beaten and then taken to another place (he was driven in a jeep with blacked out windows) where he was severely beaten and detained for three or four days.  His father through a policeman acquaintance, obtained his release upon payment of 15,000Rs.  On his release he found himself at the Kalubowila police station.”

6                     After leaving school the applicant obtained employment in 1995 with Air Lanka as a ground handling agent at Colombo International Airport.  However, he claims that, as a result of a bomb blast and incidents of people smuggling at the airport, security was intensified and he was questioned by aviation security authorities about the bomb blast and about his association with the Liberation Tamil Tigers of Eelam, (“the LTTE”).  Thereafter, he claimed, he "was constantly harassed by the authorities" and he explained this harassment by saying that he was the only Tamil-speaking employee at the Air Lanka section of the airport passenger terminal.  The RRT's summary of the applicant's remaining claims is as follows:

“The Applicant claimed to have been receiving telephone calls at home from about March/April 1995 from people who announced themselves as being LTTE who wanted to know about the airport security systems.  These telephone calls increased in number and became more threatening after the bomb blast in June.  The Applicant feared that his telephone was tapped and did not answer the ‘phone.  He asked his friends to stop calling him at home.  By December he resigned from AIR LANKA as he felt he was not safe;  he spent a month at home without going out much. 

The Applicant then obtained a job with AOM, a French airline, in January 1996, and he claims that after about two months the same ‘phone calls recommenced.  also by this time people smuggling rackets were being investigated at the airport by the Criminal investigation Bureau.  The movements of all staff at the airport were monitored.  The applicant claims the airport security suspected him of involvement with people smuggling. 

the Applicant claims that he received a letter from the LTTE, around June 1996, which indicated that he had been unwilling to provide the information sought and that, for that reason, his life was in danger.  The Applicant burned the letter.

The Applicant's parents were extremely worried, having read the letter and decided to send the Applicant abroad.  At about the same time the Applicant was approached by telephone and asked to help to get some people out of the country;  he was told he would be paid for it.  They subsequently gave the applicant two weeks to decide, else they would take matters into their own hands. 

The Applicant claims that his parents decided to hide him with friends until the travel arrangements were completed and he could go abroad. 

The Applicant claims that if he returns to Sri Lanka his life will be in danger, and he has learned from two letters from his mother that plain-clothes armed men have come looking for him at home.  The applicant believes these are members of the Security Forces who believe that he has passed on information to the LTTE.”

7                     The RRT perceived the applicant's claim to be at risk of persecution for a Convention reason as arising first from his "racial" identification as a Tamil Muslim and, secondly, from the political profile imputed to him by the Sri Lankan authorities as a supporter of the LTTE.  That profile, the RRT noted, was said to have been acquired as a result of:

“a)      the incident in 1992 where he was purportedly beaten and detained for fraternising with Tamils and

b)         the suspicions which he may have aroused in the Security forces following the alleged approaches to him by the LTTE.”

8                     The RRT rejected both grounds on which the applicant claimed to have a well-founded fear of persecution.  In respect of the first ground, based on "race", the RRT, after reviewing a body of "country information", accepted that, by contrast with, other Tamils perceived to be sympathetic with the LTTE, Tamil Muslims have been aligned with and staunchly supported, by the Sri Lankan government.  It also found that Tamil Muslims are marked out from other Tamil groups - Indian and Sri Lankan Tamils - by their maintenance of distinct cultural, religious and legal traditions.

9                     Those findings led the RRT to reject the applicant's claim to have a well‑founded fear of persecution because of his social identification as a Tamil Muslim.  In that respect it said:

“Contrary to the above and contrary to the stated claims, the submission appears to be predicated on a belief that the situation of Tamil Muslims is virtually indistinguishable from that of other Tamils.  At the hearing the applicant declared that he was not a practising Muslim and in general terms played down this aspect, even though his name clearly identifies him as a Muslim.  He was living in a Sinhalese neighbourhood and declared his ability to speak Sinhala. 

The Tribunal finds that the applicant is emphasising his “Tamilness” and his “Muslimness” to suit his claims.  The Tribunal does not accept that there is any appreciable difference between the applicant and the general profile of Tamil Muslims as described above.  The Tribunal finds that there is not a real chance that the applicant would face persecution from the Security Forces on the Convention ground of race alone should he return to Sri Lanka.”

10                  After indicating that it had been led "to find that the applicant is not a credible witness", the RRT then considered each of the matters which the applicant had invoked as establishing the political profile allegedly imputed to him by the Sri Lankan authorities.  As to the incident in 1992 following the suicide of the LTTE intelligence operative, the RRT said:

“In relation to the incident in March 1992, when he was allegedly detained and beaten.  The Applicant does not remember the date of the incident, even though, if one accepts the account, it was a traumatic experience for a 19 year-old.  The applicant admitted that he did not witness the suicide incident.  The connection between this incident and the search of his house is plausible but not necessarily real. 

The Tribunal accepts that a number of houses would have been searched after such an incident and the applicant's house could have been one of them.  The tribunal does not accept that the search of his house was occasioned by a report from the neighbours who were unhappy about the fact that the applicant's house was frequented by Tamils.

At the hearing the applicant revealed that he had been taken to two police stations and that his father had had to pay 15,000Rs to have him released after three or four days of detention.  These two aspects were not mentioned in the original claim.  When it was put to the applicant that he had not mentioned the bribe his father had to pay, he stated that he had forgotten to mention it.  Neither the omission of the facts or the explanation for that omission is plausible, especially given that the applicant stated at hearing that his father had to borrow the money.

Nor is it credible for the applicant to have omitted to indicate in his original submission that he was transferred from one place of interrogation to another.  This fact presumably would have added weight to the argument that the interest of the security forces in the applicant was more than a passing one.”

11                  Later incidents relied on by the applicant as giving rise to a real fear of persecution by reason of his imputed political profile were said to have occurred in the course of his employment at Colombo Airport in 1995.  He claimed that he had been harassed by the LTTE making telephone calls to him from March to December 1995 seeking information about airport operations.   The RRT regarded that claim as implausible, saying:

“... it is implausible that a terrorist organisation such as the LTTE would wait such a long time for some results and would persist with the same methodology to obtain such information for so long.  It is also implausible that they would be so insistent for so long given the position occupied by the applicant, who may have had access to security information of a limited nature commensurate with his duties and who had been there such a short time.”

12                  The RRT also declined to find that the applicant had received a letter from the LTTE, saying:

“The Applicant's claim that he received a letter from the LTTE was vague;  when pressed about the time it arrived, the applicant was still not specific and indicated that he received it about June (1996).  It seems highly unlikely that the LTTE would put its demands on paper, complete with the LTTE seal (as the applicant indicated).  There was no reason for him to be contacted by mail since he claims that he was regularly harassed by telephone calls.”

13                  The applicant also seems to have claimed that, by reason of the interest shown in him by the LTTE, he had become an object of suspicion by the airport security authorities.  Another reason he asserted for that unfavourable attention was that he was the only Tamil speaker at the passenger terminal or, on a later version, at the Air Lanka section of the Colombo International Airport.  The RRT rejected both these assertions of reasons for undue attention by the airport security authorities, characterising them as "implausible". 

14                  A third claim, only made at the hearing before the RRT, was that the airport security authorities suspected the applicant of having been involved in "people smuggling".  The RRT's general conclusion declining to make the factual findings urged by the applicant was expressed in these terms:

“In view of the inconsistencies above, the Tribunal finds the applicant not credible and therefore does not accept his claims relating to detention in 1992, harassment by the LTTE in the form of telephone calls and letter and harassment by the security forces.  It finds that the applicant does not have an imputed political profile, nor that he is being targeted by the LTTE.  It therefore finds that he would not have a real chance of persecution for the Convention ground of political opinion should he return to Sri Lanka. 

The Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason.”

15                  The necessarily brief review which I have undertaken of the RRT's reasons indicates that the errors which the applicant imputes to it are all constituted by its declining to make findings of fact which he contends should have been made.  The RRT took that course after forming its own view of the credibility of the applicant and the likelihood, as a matter of logic or human experience, of the applicant's assertions being true. Those were all intrinsically aspects of the fact-finding function reposed in the RRT by the Act.  A Full Court of this Court in Ibrahim v Minister for Immigration and Multicultural Affairs [2000] FCA 1309, (V261 of 2000, unreported, 14 September 2000), observed in the joint reasons of the Court at para 11:

“Although it may be accepted, as the Full Court pointed out in Kopalapillai [v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547] that a decision-maker in evaluating the credibility of an applicant for a protection visa should consider sympathetically possible explanations for evidentiary inconsistencies, it does not follow that a finding on credibility by the tribunal can be the subject of review by the Court pursuant to s 476(1) of the Act.  As was observed by McHugh J in Re Minister for Immigration and Multicultural Affairs Ex Parte Durarajasingham (2000) 168 ALR 407 at 423:  A finding on credibility is the function of the primary decision-maker par excellence.”

16                  In the latter case, after making that observation, McHugh J continued:

“If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed.  The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.  In any event, the reason for the disbelief is apparent in this case from the use of the word "implausible".  The disbelief arose from the tribunal's view that it was inherently unlikely that the events had occurred as alleged.”

17                  Even if I had been disposed to reach a view different from the Tribunal in respect of some of the facts found by it, that would not afford a basis for a grant of prerogative relief on any of the four grounds which have been referred by the High Court for examination by this this Court.  For these reasons, the part of the matter remitted to this Court by the High Court, must be dismissed with costs. 

Associate:

Dated:              20 October 2000