FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Multicultural Affairs v Rajadurai [2000] FCA 1671

MIGRATION – protection visa – appeal from judge’s decision to set aside decision of Refugee Review Tribunal – claim by applicant that he declined Sri Lankan police request for assistance in identifying LTTE suspects – applicant subsequently going into hiding and fleeing the country – whether judge correct in concluding that Tribunal failed to deal with central aspect of claim

Migration Act 1958 (Cth) ss 476(1)(a), 476(1)(e)

Minister for Immigration & Multicultural Affairs v Baljit Singh (2000) 98 FCR 469 applied

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v JORDAN SUSILAN RAJADURAI

N 939 OF 2000

HEEREY, MOORE AND GOLDBERG JJ

24 NOVEMBER 2000

SYDNEY

On appeal from a single Judge of the Federal Court of Australia

THE COURT ORDERS THAT:

1.         The appeal is dismissed.

2.         The appellant pay the respondent’s costs to be taxed including reserved costs.

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

On appeal from a single Judge of the Federal Court of Australia

REASONS FOR JUDGMENT

THE COURT:

1                     The Minister appeals from a decision of Mathews J who set aside a decision of the Refugee Review Tribunal and remitted the respondent’s application for a protection visa for rehearing before a differently constituted Tribunal.

2                     The respondent is a Tamil and a citizen of Sri Lanka born on 19 May 1965.

3                     On 31 March 1997 he arrived in Australia and on 13 May of that year applied for a protection visa.  His application was accompanied by a statutory declaration, to which reference will need to be made, and other material.  He gave the following account.

4                     Between 1994 and 1996 he made business visits to the Eastern Province of Sri Lanka, sometimes for extended periods.  In late 1995 he was awarded a contract to carry out repairs to a building at the Eastern University and for that purpose was living at Batticaloa.  Twice in October 1995 he was approached by men who said they were members of the Liberation Tigers of Tamil Eelam (LTTE) who asked him to donate money.  He refused.  About the end of that month men forced him at gun point into a vehicle where he was blindfolded and driven to an LTTE camp.  He was forced to do heavy work digging bunkers.  After a few days he was taken before the leader of the group who told him that if he did not agree to pay five per cent of his income to the LTTE he would be kept working at the camp.  He agreed to make the payment.

5                     In the following month the respondent’s work at the university concluded and he was paid.  He was then visited by two LTTE members who again blindfolded him and drove him to the camp.  He spoke to the same leader and said that he was agreeable to paying the five per cent but he would shortly be leaving Batticaloa and returning to Colombo.  The leader demanded that he allow three LTTE members to accompany him to Colombo, so as to provide a cover for them at the various check points.  The leader threatened to kill the respondent’s family unless he agreed to this.

6                     The next day the respondent and the three LTTE members left for Colombo.  When they passed through check points the respondent told the inspectors that the three men were his employees who were returning to Colombo to find work. 

7                     Upon his return to Colombo the respondent continued to work in his business.  He revisited Batticaloa on a few occasions but the LTTE made no further demands on him. 

8                     In October 1996 the respondent was arrested by police who took him to the local police station.  He was asked to identify a man there who was one of the three LTTE members who had accompanied him to Colombo.  At first the respondent denied knowing the man but after a series of assaults he eventually gave a full account of his involvement with the LTTE during the previous year.  During all this time he was repeatedly assaulted and beaten and had his head pushed into the bottom of a dirty toilet bowl.  He was kept in custody until late November in inadequate and degrading conditions.  Towards the end of that time he was taken before a court and then released on condition that he report to the police each week. 

9                     The first time the respondent reported to the police two Criminal Investigation Division (CID) officers took him to a separate room and asked him to give a full account of his involvement with the LTTE.  He did this.  The CID officers were polite and apparently sympathetic.  They asked him if he would accompany them to Batticaloa and identify the men who had harassed and mistreated him.  The respondent was afraid but the officers told him not to worry and that they would protect him.

10                  What then happened is described in the statutory declaration which the respondent made in Sydney on 13 May 1997 to accompany his application for a protection visa:

“30.  In the third week of January 1997 four CID officers came to our house and asked whether I will be able to come with them to the East and help them.  I first refused.  Then they said if I was not linked with the LTTE why I should refuse their request.  I then said that I was already in the police detention for one and a half months and I did not want to get involved in these matters again.  But the CID insisted that I should come along with them at least once, and if I refused, they could still take me forcibly with the help of the police and the security forces.

31.  After this incident I left the house and went into hiding.  I went to my uncle’s house in Gampaha and remained indoors. During this time I also contacted my brothers and sister in Australia and told my problem to them.  At that time my sister was planning to get married.  My uncle who was aware of my problem said that he would help me to get the visa by providing a letter saying that I worked for his company.  He also gave his bank details in order to support my application.  Therefore I sited [sic] this as a reason and applied for a visitor’s visa.  I was granted a visa on the 21 February 1997, and I came to Sydney on 31 March 1997.

32.  I fear that if I return to Sri Lanka I will be put into the Police cell again, tortured, harassed for not obliging to their request and travel to the East to identify LTTE members.  I am also afraid that the Sri Lankan authorities would have now concluded that I was linked to the LTTE, although I was compelled by the LTTE to carry out their orders.  I am afraid that they will arrest me and persecute me.  Therefore I apply to the Australian government to protect my life.”  [Emphasis added]

Judgment on the application

11                  The ground on which the respondent succeeded before his Honour was that contained in s 476(1)(e) of the Migration Act 1958 (Cth) which provides a ground of review if the decision of the Tribunal involves an error of law, being an error involving an incorrect interpretation of the applicable law, or an incorrect application of the facts as found by the person who made the decision, whether or not the error appears on the record of the decision. 

12                  As her Honour noted, it is well established that failure on the part of the Tribunal to deal with a material issue which is raised on the evidence before it constitutes an error of law.  It might be added that such an omission may also constitute a failure to observe procedures required by the Act (s 476(1)(a)) and in particular the obligation on the Tribunal to set out findings on any material questions of fact and refer to the evidence or any other material on which findings of fact are based (s 430(1)(c) and (d)):  Minister for Immigration and Multicultural Affairs v Baljit Singh (2000) 98 FCR 469.  Her Honour said:

“28.     The Tribunal dealt with various bases upon which Mr Rajadurai might fear persecution in Sri Lanka (including some which were not raised by him) and rejected all of them.  However it failed, in my view, to deal with the principal basis upon which Mr Rajadurai said that he feared persecution on the part of the Sri Lankan authorities.  This was that, by reason of his having chosen to leave the country (thus, incidentally breaching his reporting conditions) instead of remaining and assisting the authorities against the LTTE, he would now be categorised by the authorities as an LTTE supporter with the result that they would arrest and persecute him on his return.  This is precisely the matter that was raised by Mr Rajadurai in the statutory declaration which accompanied his visa application (see passage quoted in para [15] above).  As to this, the Tribunal said in its decision that:

‘while he (Mr Rajadurai) may not have acquiesced to the police request to assist them three years ago, I cannot accept that this would precipitate police reprisals on his return.  From his evidence it is clear that the police did not regard him as an LTTE sympathiser.’

29.       The Tribunal then went on to deal with Mr Rajadurai’s breach of his reporting conditions, which might render him liable to punishment on return for having breached a law of general application.  This, it found, would not amount to persecution in the Convention sense.

30.       The problem with this part of the Tribunal’s decision is that Mr Rajadurai did much more than ‘not acquiesce’ to the police request for assistance.  He took the very extreme step of leaving the country.  Nor is it correct to say that the police clearly did not regard him as an LTTE sympathiser.  During his final encounter with the CID officers, in January 1997, they queried why he was not prepared to assist them if he was not an LTTE sympathiser.  Mr Rajadurai’s fear, as expressed in his statutory declaration, is that, by leaving the country he confirmed the authorities’ view that he was an LTTE sympathiser  This was central to his claim that he feared persecution were he to return.  The Tribunal failed to deal with this issue.  This amounted to an error of law under s 476(1)(e) of the Act.”

Conclusion on the appeal

13                  As counsel for the Minister on the appeal correctly accepted, if a claim by an applicant for a protection visa is made, and that claim is central to the application, and is not dealt with by the Tribunal, then the error identified in Baljit Singh will be established. 

14                  The Tribunal appears to have very largely accepted the truthfulness of the respondent as to the various events he related and in particular his abuse by the police while in detention in Colombo and the subsequent sympathetic treatment by the CID officers and their request for him to accompany them to Batticaloa to identify the LTTE men.  However, we agree with her Honour that the Tribunal seems to have missed the central point of the respondent’s case.  What he is clearly saying in his statutory declaration is that rather than accompany the CID officers to Batticaloa he went into hiding and fled the country.  He fears that his flight will confirm the suspicions of the CID.  Making his statutory declaration in Sydney six weeks after his arrival he swears that he fears the Sri Lankan authorities “would have now concluded that (he) was linked to the LTTE”.  It was this material issue which was not dealt with by the Tribunal.  The strength of the respondent’s case, which he was entitled to have considered on its merits, and made the subject of findings, rests on the sequence and timing of the events described in pars 31 and 32 of his statutory declaration.

Order

15                  The appeal will be dismissed with costs, including reserved costs.

Associate:

Dated:              24 November 2000