FEDERAL COURT OF AUSTRALIA

Junaideen v Minister for Immigration & Multicultural Affairs [2000] FCA 1927

MIGRATION – protection visa – application to review decision of Refugee Review Tribunal – findings of fact

Migration Act 1958 (Cth) s 430(1)(b)(c) and (d)

Zitoni v Minister for Immigration and Multicultural Affairs [2000] FCA 621 applied

Khelifi v Minister for Immigration and Multicultural Affairs [2000] FCA 791 applied

MOHAMED BASHER JUNAIDEEN v MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

NO V 801 OF 2000

HEEREY J

21 DECEMBER 2000

MELBOURNE

THE COURT ORDERS THAT:

The application is dismissed with costs, including reserved costs.

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

REASONS FOR JUDGMENT

1                     This is an application for review of a decision of the Refugee Review Tribunal affirming the decision of the delegate of the Minister not to grant the applicant a protection visa.  I incorporate, by reference, the reasons of the Tribunal.

2                     It is apparent that a central feature of the applicant’s case was that he was a Muslim.  The Tribunal referred to a number of authoritative sources, including the Department of Foreign Affairs and Trade country information reports and United States State Department reports and a report of a delegation from the International Islamic Institute to the Australian High Commissioner in Colombo, all of which were to the effect that despite some initial identity of interest the LTTE has turned on Muslims in Sri Lanka and perpetrated major atrocities against them.  As the Tribunal summarised the position, the actions of the LTTE against Muslims have been so well publicised or documented in Sri Lanka that the Tribunal was unable to accept the applicant's claim that he, as an active Muslim, would be suspected by the authorities of supporting the LTTE cause.

3                     More specifically, the tribunal rejected claims by the applicant that he had been tortured.  The Tribunal discussed the evidence on this issue at page 94 of the Court Book in a way that is rationally understandable.  No error of law has been established.  Much was made by counsel of material from an Amnesty report to the effect that torture by government authorities is widespread in Sri Lanka. But of course what the Tribunal had to decide was the particular claim made by the applicant in relation to his own experience and its finding of fact on that particular issue does not disclose any error of law.  Its finding was in firm terms and it was not obliged to engage in “reasonable speculation”.

4                     The extent to which an attempt was made to review findings of fact is demonstrated by the argument advanced in relation to a passage on p 94 of the Court Book where the tribunal says:

“The Tribunal does not find convincing the applicant's account of his dealings with Mr Paramesh.  It is plausible that the applicant rented out bicycles to some youths.  It is plausible that when these were not returned within the appropriate time he went to make a complaint to the police.  It is plausible that the police blamed him for renting out the bikes and pushed him to say that it was probably LTTE youths who had them.  What the Tribunal does not find plausible is his claim that he himself was then taken into the custody of the army and tortured.  The Tribunal has found the applicant's account confused between accusations that he was a supporter of the LTTE and accusations that he was supporting the Home Guard.  These are two such different organisations on different sides of the conflict in Sri Lanka that suspicion of activity on behalf of one would almost automatically rule out suspicion of support for the other.”

5                     It was said that the finding, or at least the acceptance of the possibility, that the police “pushed” the applicant to say it was LTTE youths who had the bicycles amounted to a finding that the police had tortured the applicant.  As a matter of ordinary language that is unsustainable.  To say that someone in authority “pushed” a person to say or do something may convey a notion of overbearing conduct but would not, without more, suggest torture.  In any event, the suggested construction is quite inconsistent with the immediately following sentence.  Elsewhere, on p 94 the Tribunal gives rational reasons for rejecting the applicant's claim that he was tortured.

6                     There was also a complaint that the Tribunal had not made findings of fact in relation to his claim that his son was taken away and also to family letters reporting to him that he was still under suspicion.  However, as was accepted, the Tribunal was entitled to deal in a compendious way with material placed before it and was not obliged to isolate the elements of that material and deal with each element separately in its reasons for decision.  This is particularly so when minor issues are subsumed in larger issues dealt with by the Tribunal (see Zitoni v Minister for Immigration and Multicultural Affairs [2000] FCA 621; Khelifi v Minister for Immigration and Multicultural Affairs [2000] FCA 791).  All the claims about “continuing interest” by the authorities were properly dealt with on the basis of the fundamental non‑acceptance of his claim to have been detained, harassed and tortured. 

7                     The application will be dismissed with costs including reserved costs.

Associate:

Dated:              21 December 2000