FEDERAL COURT OF AUSTRALIA

Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1567

MIGRATION – application for a protection visa - well-founded fear of persecution for reasons of race and political opinion – review of a decision of the Refugee Review Tribunal under s 476(1)(a) and (e) of the Migration Act 1958 (Cth) - whether the Tribunal failed to address a basis upon which the applicant claimed to have a well-founded fear of persecution - whether the Tribunal is required to refer to the existence of country information which supports a contrary conclusion.

Migration Act 1958 (Cth) s 36(2), s 430(1)(b), (c) and (d),  476(1)(a),  476(1)(e)

Migration Regulations 1994 (Cth) Sch 2, Subclass 866

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

Minister for Immigration and Multicultural Affairs & Ors; Ex parte Durairajasingham [2000] HCA 1 referred to

Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 followed

RAVISHANKER PATHMATHAN IYER v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N1190 of 1999

MATHEWS J

8 NOVEMBER 2000

SYDNEY

THE COURT ORDERS THAT:

1)      The application be dismissed.

2)      The applicant is to pay the respondent’s costs.

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

REASONS FOR JUDGMENT

INTRODUCTION

1                     The applicant, Mr Iyer, seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 22 September 1999 which affirmed a decision of the respondent’s delegate that the applicant was not entitled to a protection visa. 

2                     In order to be eligible for a protection visa an applicant must meet the criteria set out in s 36(2) of the Migration Act 1958 (Cth) (“the Act”) and Subclass 866 in Sch 2 of the Migration Regulations 1994.  Both provisions require that the applicant for a protection visa be a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).  Article 1 of the Convention defines a “refugee” as any person who “… owing to a 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 …”.

3                     Mr Iyer says that he has a well-founded fear of persecution in his country of nationality, Sri Lanka, for reasons of his race and his imputed political opinion.

factual background

4                     The following account of Mr Iyer’s background in Sri Lanka is taken from the statements he later provided to the respondent’s delegate and to the Tribunal.  They were lengthy statements, and this summary extracts only those matters that were relevant to the Tribunal’s decision.

5                     Mr Iyer is a Sri Lankan Tamil who was born in 1966 in Jaffna in the country’s north.  His family is Brahmin, a group which is known to be non-violent. 

6                     Between 1970 and 1983 Mr Iyer’s family lived in Colombo where he studied at the Royal College.  After the July 1983 riots in Colombo he and his family returned to Jaffna.  Not long afterwards Mr Iyer went to India where he studied engineering.  At that time his father was working in the Maldives.  In May 1985 Mr Iyer’s mother died in Jaffna.  It was not safe for him to return to Jaffna at that time so he was unable to attend his mother’s funeral.

7                     Other than a brief visit to Jaffna in October 1985, Mr Iyer did not return to Sri Lanka until September 1987.  In October of that year he was arrested in Jaffna by the Indian Peace Keeping Force (“the IPKF”).  He was held for approximately one month during which time he was interrogated and seriously mistreated and assaulted. 

8                     After Mr Iyer’s release by the IPKF he returned to Colombo.  Shortly afterwards, in December 1987, he was arrested, this time by the local police who suspected that he was a supporter of the Liberation Tigers of Tamil Eelam (“the LTTE”).  Again he was beaten and ill-treated.  He was released after about three weeks, as were a number of other Tamils who had been arrested at much the same time.

9                     In November 1988 Mr Iyer left Sri Lanka and went first to India and later to the Maldives.  He returned to Colombo in April 1992, and six months later returned to Jaffna.  In March 1993 he was taken from his home by members of the LTTE and placed into a truck which went to an unknown destination.  There he was detained under appalling conditions.  He suffered serious deprivation, humiliation, illness and physical assaults.  He was eventually released seven months later, in October 1993, upon his promise to give his house and all his property to the LTTE.  It was not until four months later, after he had made good this promise, that he was allowed to leave the Jaffna area.

10                  In May 1995 Mr Iyer left Sri Lanka and did not return for nearly three years.  He spent most of the intervening time in Singapore where he studied at an Institute of Technical Education.  In February 1998 he returned to Colombo for the purpose of applying for a visa to Australia.  There he was required to register with the police.  He and a number of other Tamils had to wait for a considerable time – about seven hours – in order to register.  He was not ill-treated during this time, but was very apprehensive that he might be.

11                  On 5 March 1998 Mr Iyer received an Australian visa.  He left Sri Lanka almost immediately and arrived in Australia on 8 March 1998.

12                  On 23 April 1998 Mr Iyer applied for a protection visa.  His application was accompanied by a very lengthy statement, which is summarised above.  He gave the following reasons for submitting that he was unable to return to Sri Lanka.

“1.       I have no relatives or any member of my family living in Sri Lanka.  If I returned I have to find accommodation in a lodge or in a private house as a boarder.  A Tamil youth who lives in these conditions and is alone is the primary target for the authorities.

2.         The authorities will not accept my bona fide as I will not be able to obtain the Necessary [sic] testimonials they require.  Furthermore, I would always be looked upon with suspicion that I am in Colombo to engage in some subversive activity on behalf of the Tigers.

3.         The reports coming out of Sri Lanka confirm that the harassment of the Tamils, particularly those living in Colombo is continuing unabated.  I have never lived in any other part of Sri Lanka other than Colombo and Jaffna.  I cannot go back to Jaffna because if by some chance the authorities get to know that our property was given over to the Tigers I would be branded as Tiger supporter and persecuted.

4.         Sri Lanka has turned out to be a nation, which is totally alien to me.  The only memories I have are of torture and harassment.  I can never make up my mind to live in that nation because I have genuine fears that due to the fact that I am single and have no connections whatsoever that I would be singled out for unjustifiable persecution by the authorities.”

13                  On 30 May 1998 the respondent’s delegate refused Mr Iyer’s application for a protection visa.  On 22 June 1998 he applied to the Tribunal for a review of the delegate’s decision.  On 27 April 1999 Mr Iyer made a lengthy statutory declaration which was forwarded the next day to the Tribunal.  It gave an account of his background which was essentially similar to that contained in his earlier statement.  On 25 June 1999 his solicitor forwarded a lengthy submission (19 pages) to the Tribunal quoting various items of country information and stressing the difficulties faced by Tamils in Sri Lanka.

14                  On 30 June 1999 the Tribunal conducted a hearing at which Mr Iyer and his representative attended.  The transcript of that hearing was not included in the papers sent to the Court.  However the Tribunal’s decision contains a description of the salient points of this hearing.  In the absence of any criticism of this account, I must assume its general accuracy.  Later, on 20 July 1999, Mr Iyer’s solicitors wrote a further letter to the Tribunal addressing issues which had arisen at the hearing and providing further country information.  The letter concluded in the following terms:-

“Concluding submissions

It is respectfully submitted that given the totality of the evidence before the Tribunal, the claims of our client are credible and well-founded.  It is submitted that as a young man from Jaffna, Mr Iyer faces an increased risk on his return to Colombo of Convention related persecution.  It is further submitted that such a risk is well-founded given the evidence available.

He has no immediate family in Sri Lanka to offer him protection, in Colombo or in Jaffna, assuming he is able to return there.  His risk is not only arrest and torture as a suspected LTTE supporter, but also arrest for purposes of extortion, as a Tamil with family overseas. It is submitted that the use of extortion in such cases is not only persecution but also Convention related as it is directed at Tamils, not at Sinhalese or the population in general.

It is submitted that he meets the criteria of a well-founded fear of future persecution because of Convention related claims.”

The Tribunal’s Decision

15                  On 22 September 1999 the Tribunal gave its decision, affirming the respondent’s decision not to grant Mr Iyer a protection visa.  By that time, as the above account indicates, the Tribunal had a great deal of information before it, much of it provided by Mr Iyer or his representative.  In addition it had access to the various items of country information which are generally available to Tribunal members when determining refugee applications.

16                  The Tribunal in its decision reproduced Mr Iyer’s lengthy statutory declaration of April 1999.  It also quoted from a 1997 Amnesty International Report on the then position in Sri Lanka.  The “Findings and Reasons” section of its decision commenced with the following passage:

“The applicant’s claims principally flow from an affiliation with the LTTE which he says would be presumed by the Ski Lankan authorities because he is a young Tamil man from Jaffna.  The Tribunal groups those claims under the Convention reason of political opinion, although it recognises that there may be an overlap with aspects of, for example, race.”

17                  The Tribunal accepted that Mr Iyer had been detained and ill treated on the three occasions described by him.  It is relevant to quote the terms in which the Tribunal made these findings:

“The Tribunal accepts that the applicant was detained and ill-treated by the IPKF in 1987.  The period of the IPKF occupancy of the north was notable for its brutality and lack of concern for human rights.  However, in the light of the fact that the IPKF left Sri Lanka in early 1990 and no party in Sri Lanka, in government or in opposition, advocates the reintroduction of Indian troops, there is no real chance of an IPKF return or, therefore, of further mistreatment of the applicant by the IPKF: “Sri Lanka” 1996, The Far East and Australasia 1997, Europa Publications Limited, London, p. 986.

I accept that after the applicant arrived in Colombo in December 1987 he was arrested on suspicion of being a Tiger, taken to a police station and held for three weeks, during which time he was mistreated.  I note that according to his own evidence he was released, along with others, after a Tamil MP had made representations on behalf of those people who had fled from the north who were being treated as suspected terrorists.  His release indicates that while he had fitted the profile of an LTTE supporter, he was no longer regarded as such.  This is supported by the fact that he was issued with a new identity certificate and a passport a few months later.  Had he been of continuing interest to the authorities he would not have been able to obtain the means of leaving the country.

……

I find plausible the applicant’s claim that that he was arrested by the LTTE in 1993 and detained for seven months, during which time he was beaten and made to give them family jewellery, a family house and other items of value.  It is plausible that he was questioned by the LTTE and accused of being a member of another Tamil militant group.  His experiences at the time conform to similar accounts: Sri Lanka: Information on a special Liberation Tigers of Tamil Eelam (LTTE) pass for travelling from the north to Colombo for medical reasons The Documentation, Information and Research Branch, Immigration and Refugee Board, Ottawa, 13 October 1993 (LKA15435.E).  I note that having come to arrangement with the LTTE he was able to live in Jaffna under their control without incident for eighteen months, until he obtained a pass from them to leave for Colombo.  Today the LTTE no longer controls Jaffna, although it continues to cause disruption to the civil administration: CIR No. 208/99, 21 June 1999 (Source Doc.: Sri Lanka: May monthly report) (CX35670).  The chance of the applicant being targeted again by the LTTE in Jaffna is today remote.  The independent evidence suggests that those people principally targeted are those making a public political stance, such as standing a candidate for mayor.  He is a motor mechanic, not an aspirant for public office, nor has he indicated that his interests lie in that direction.  Even if he feared persecution for a Convention reason, he would be able to request the protection of the authorities: Humanitarian update-return to Jaffna.  DFAT Cable CL 599, 13 May 1997 (CX28833).”

18                  The Tribunal also accepted Mr Iyer’s account of attending a police station in Colombo in 1998 and being required to remain there for several hours.  However it discounted this as a “normal identity checking procedure for people not usually resident in Colombo” and commented that the delay of several hours was not unusual in the Sri Lankan bureaucratic context.

19                  The Tribunal concluded its decision in the following terms:

“I do not accept that as a Tamil with relatives overseas the applicant would be a target for extortion.  He has not claimed that he was so in the past, although his father had been working abroad since 1982.  The 1997 Amnesty report cited above also states that “Between 200,000 to 300,000 Sri Lankans are living in Europe and North America as recognized refugees, asylum-seekers in the course of having their claims assessed, rejected asylum-seekers, or those simply without any status or documentation.  An estimated 100,000 are living as refugees in India.  The large majority of these people belong to the Tamil community, one of the world’s largest refugee diasporas.”  Most of the Tamil population of Sri Lanka now has relatives living abroad.  Without more, I cannot find that the applicant would be subject to extortion for reason of his race, or for any other Convention-related reason.

While I accept that life in Jaffna would sometimes be difficult for the applicant, as he would, like the rest of the civilian population, be subject to frequent security checks and problems associated with the recovering infrastructure of the city, such as electricity shortages (vide Return to Jaffna, supra) these difficulties would not in his case amount to persecution in the Convention sense.  He has not been associated with any of the political groups, such as PLOTE, which the LTTE is against and there is no reason why he would come to their, or the authorities’ adverse attention.  As stated above, he has not evinced any political aspirations in the past.  For similar reasons I cannot accept that he cannot return to Colombo.  He was arrested in that city only once, in 1987 at between the years 1972 and 1983.  He has been able to live in Colombo and to come and go whenever he pleased for much of his life.  I do not accept his adviser’s contention that as a young man from Jaffna he faces increased risk of persecution on return to Colombo.

I find that the applicant’s claims, considered cumulatively, do not amount to his having a well-founded fear of persecution to return to Sri Lanka for reason of his race or imputed political opinion, or for any other Convention reason.”

20                  The Tribunal therefore found that Mr Iyer did not satisfy the criteria for eligibility for a protection visa and affirmed the delegate’s decision refusing his application.

Application to this court

21                  In his application for review, Mr Iyer relied on two grounds under s 476 of the Act.  They were: first, a ground under s 476(1)(a) that the Tribunal failed to comply with procedures that were required to be observed in connection with the making of the decision; and secondly, a ground under s 476(1)(e) that the decision involved an error of law, being an error involving an incorrect interpretation of the law and an incorrect application of the law to the facts. 

22                  The “procedures” which it was claimed the Tribunal failed to observe under the first ground are those set out in s 430(1)(b), (c) and (d) of the Act.  That section provides as follows:

“430 Refugee Review Tribunal to record its decisions etc.

(1)               Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

(a)   …….

(b)   sets out the reasons for the decision; and

(c)    sets out the findings on any material questions of fact; and

(d)   refers to the evidence or any other material on which the findings of fact were based.”

23                  In support of the first ground of review the following particulars were furnished:

“(a)     In making its findings that the LTTE no longer controls Jaffna, that the chance of the applicant being targeted again by the LTTE in Jaffna today is remote, and that in any event the applicant would be able to request the protection of the authorities, the Tribunal failed to set out tis [sic] findings or refer to any evidence in support of its findings as to the independent country information provided by the applicant, including:

(i)                 The United States Department of State Sri Lanka Country Report for 1998 (February 1999), and the Human Rights Watch World Report 1999(December 1998) which referred to the arbitrary arrest and detention of Tamils on the Jaffna Peninsula.

(ii)               The United States Department of Sri Lanka Country Report for 1998 (February 1999) which reported that the LTTE continued to control large sections of the north and east of Sri Lanka and routinely violated the civil liberties of residents in those areas.

(b)               The Tribunal also failed to set out its findings or refer to any evidence in relation to the independent country information provided by the applicant which supported his claim as a Tamil he is likely to be subjected to persecution in Colombo, including:

(i)                 The British Refugee Council Report, Sri Lanka Tamils, the Home Office and the forgotten civil war (February 1997).

(ii)                TamilNet article, “Security pretext for extortion-MP” (22 April 1998).

(iii)               Amnesty International, Annual Report 1999.

(iv)             Amnesty International, Sri Lanka, Torture in Custody (June 1999)”

24                  The particulars in support of the ground under s 476(1)(e) were as follows:

“The Tribunal’s failure to set out its findings on material questions of fact or refer to the evidence or any other material upon which its findings of fact were based, as referred to in the Ground 1, also amounts to an error of law.”

the applicant’s contentions

25                  At the hearing before me, Mr Poynder, who appeared for the applicant, relied primarily upon the second ground of review (the s 476(1)(e) ground). In that regard, he pointed out that Mr Iyer’s claim before the Tribunal was that he had a well-founded fear of persecution from the Sri Lankan authorities on the ground of both his imputed political opinion, as a suspected LTTE supporter, and also on the ground of race, as a Tamil.  Mr Poynder conceded that the Tribunal adequately dealt with the issue of whether Mr Iyer faced persecution on the ground of his imputed political opinion.  However he submitted that the Tribunal had failed to adequately address Mr Iyer’s claim that, as a Tamil, he had a well-founded fear of persecution from the Sri Lankan authorities (1) in Jaffna and (2) in Colombo, on the ground of his race. This, he submitted, constituted an error of law under s 476(1)(e).

26                  Alternatively, Mr Poynder submitted that, if the Tribunal did implicitly reach a finding on these matters, it erroneously failed to refer to country information which supported a contrary conclusion.  This, he submitted, was a failure to observe procedures that were required by the Act and thus constituted a ground of review under s 476(1)(a). 

Discussion of issues

27                  I cannot accede to Mr Poynder’s submission that the Tribunal failed to address a possible head of persecution.  Certainly the Tribunal did not spell out, clearly and precisely, its finding that Tamils as such did not have a real chance of persecution on the ground of their race.  However the terms of the Tribunal’s decision make it clear that it considered and rejected Mr Iyer’s claim that, being a Tamil, he had a well-founded fear of persecution by the Sri Lankan authorities in either Colombo or Jaffna.  The essence of Mr Iyer’s claim was that he had a well-founded fear of persecution not only by virtue of being a Tamil, but particularly through being a Tamil (1) who came from Jaffna, (2) with relatives overseas and (3) with perceived links to the LTTE.  The Tribunal concluded that none of these combinations gave rise to a well-founded fear of persecution in Sri Lanka.  If being a Tamil, coupled with these so-called aggravating features, was insufficient to establish a well-founded fear of persecution then it must follow that the mere fact of being a Tamil could not do so.

28                  I turn to the second matter raised on behalf of Mr Iyer, namely the Tribunal’s alleged failure to comply with the requirements of s 430(1) of the Act.  It is now established that a failure to comply with s 430(1) is a failure to observe requisite procedures in connection with the making of a decision so as to constitute a ground of review under s 476(1)(a) (See Minister for Immigration and Multicultural Affairs v Singh 2000 FCA 845).  Mr Iyer’s counsel suggested that the Tribunal failed to observe the requirements of that provision in this case in that it failed to advert to items of country information which supported the applicant’s claims.  He submitted that it was incumbent upon the Tribunal to refer to this evidence and explain why it had been rejected.

29                  This submission runs contrary to the authority of Singh.  The majority judgment in that case emphasised that s 430(1) does not require the Tribunal to explain why it failed to accept material which tends to contradict its findings.  In particular, the court made the following statement:

“There is no specific requirement in s 430 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.  That is the view endorsed by the decisions referred to in par 12 above, and in our view it is consistent with the language of the section.  The decision of the Full Court in Arudselvan v Minister for Immigration & Multicultural Affairs [1999] FCA 1726 provides another illustration of this approach.  There the Court held that the RRT was not obliged to analyse material submitted by the applicant, and to give reasons for not accepting any of it that might be thought to be inconsistent with the conclusions it reached.  The endorsed view is subject to the important qualification that 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 Durairajasingham (supra).”

(par [46])

30                  Mr Poynder submitted that the circumstances of this case fell within the qualification referred to by their Honours as arising from the judgment of McHugh J in Re Minister for Immigration and Multicultural Affairs & Ors;  Ex parte Durairajasingham [2000] HCA 1.

31                  In that case McHugh J quoted from the following portion of the Full Federal Court’s judgment in Addo v Minister for Immigration and Multicultural Affairs (1999) FCA 940.

“It is not necessary, in order to comply with s 430(1), for the Tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding which it made.”

32                  McHugh J then continued:

“In my opinion, this passage correctly sets out the effect of s 430(1)(c) and (d).  However, the obligation to set out ‘the reasons for the decision’  (s 430(1)(b)) will often require the Tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings.  Whenever rejection of evidence is one of the reasons for the decision, the Tribunal must set that out as one of its reasons.  But that said, it is not necessary for the Tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the Tribunal.  Indeed, to do so would be contrary to the direction in s 420 of the Act that:

‘(1)      The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that in fair, just, economical, informal and quick.

(2)              The Tribunal, in reviewing a decision:

(a)    is not bound by technicalities, legal forms or rules of evidence; and

(b)   must act according to substantial justice and the merits of the case’.”

33                  The circumstances of the present case are significantly different from those adverted to by McHugh J in Durairajasingham.  In the present case, as in Singh, there were conflicting items of country information before the Tribunal.  The Tribunal preferred the information which pointed in one direction over that which pointed the other way.  It did so without explaining why it placed less weight on the contrary information.  This it was entitled to do under s 430(1), so long as it was not the Tribunal’s rejection of the contrary information which led to its acceptance of the information on which it did rely.  There is nothing to indicate that this was the case.  Accordingly the Tribunal’s obligation under s 430(1) did not require it to explain why it rejected those contrary statements.

34                  Mr Poynder submits that the Tribunal made a more fundamental error in this case in that it failed to even refer to the existence of items of country information which were contrary to the findings that it reached.  This, he says, went beyond merely failing to explain why the Tribunal rejected this material.  It meant that there was nothing in the Tribunal’s decision to alert a reader whether the Tribunal had considered this material at all.  As such he submits that the Tribunal failed to comply with the requirements of s 430(1)(c) or (d).

35                  I have found this aspect of the matter a little worrying, but I do not think that Mr Poynder’s submission can be upheld.  By the time the Tribunal gave its decision in this case it had before it a great deal of country information, much of which had been provided by Mr Iyer’s representatives.  If, as the authorities indicate, s 430(1) does not oblige the Tribunal to explain why it failed to accept some of this information, it is difficult to see how it could require that the Tribunal should list the material containing the information it did not accept.  As the majority in Singh emphasised, s 430 is designed to ensure that the Tribunal’s decisions adequately disclose the process of reasoning leading to its ultimate conclusions.  It would add little to that disclosure if the Tribunal were required to comprehensively list all material which contradicted any findings it made.  Moreover if the Tribunal did seek to do so, but omitted to mention a particular item, it surely could not be suggested that this amounted to a failure to observe requisite procedures under s 476(1)(a).  Yet this would appear to be the inevitable result if the applicant’s submissions on this matter were upheld.

36                  In my view the Tribunal’s decision in this case meets the requirements of s 430(1).  No other error has been demonstrated.  Accordingly, the application will be dismissed with costs.

Associate:

Dated:              8 November 200