FEDERAL COURT OF AUSTRALIA

Rajanayake v Minister for Immigration & Multicultural Affairs [2001] FCA 352

MIGRATION – refugee – application for review of decision of Refugee Review Tribunal unfavourable to refugee – claimant – Tribunal’s finding against credit – whether Tribunal erred in law by failing to address true nature of claim – whether decision based on facts which did not exist – whether Tribunal failed to observe required procedures

Migration Act 1958 (Cth) s 476(1)(a), (e), (g); s 476(4)(b)

Guden v Minister for Immigration & Multicultural Affairs (2000) 58 ALD 352 distinguished

Nefoidova v Minister for Immigration & Multicultural Affairs [2000] FCA 179 followed

Minister for Immigration & Multicultural Affairs v Rajamanikkam [2000] FCA 1023 distinguished

Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181 followed

CECIL SYLVESTER RAJANAYAKE v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1291 OF 2000

LINDGREN J

3 APRIL 2001

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant 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                     Section 29 of the Migration Act 1958 (Cth) (“the Act”) provides that subject to the Act, the respondent (“the Minister”) may grant a non-citizen permission, to be known as a visa, to travel to and enter Australia, to remain in Australia, or to do both.

2                     The applicant (“Mr Rajanayake”) applies under subs 476(1) of the Act for review of a decision of the Refugee Review Tribunal (“RRT”) affirming a decision of the Minister’s delegate (“the Delegate”) not to grant him a protection visa permitting him to remain in Australia.  It is not in dispute that the Minister delegated all relevant powers to the Delegate pursuant to s 496 of the Act.

3                     Section 65 of the Act provides that after considering a valid application for a visa, the Minister, if satisfied of the matters specified in the section, is to grant the visa, or, if not so satisfied, is not to grant the visa.  The validity of Mr Rajanayake’s application for the protection visa is not in question.  One of the matters specified in s 65 is that the criteria for the visa specified by the Act or the regulations have been satisfied.  Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant for it is a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951, as “amended” by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (compendiously, “the Convention”).  Australia is a party to the Convention.

4                     Article 1A(2) of the Convention provides that a refugee is any person who:

“owing to 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; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5                     Criteria to be satisfied by an applicant for a protection visa at the time of the decision on the application also include the criterion specified in cl 866.221 of Schedule 2 to the Migration Regulations 1994, which is that the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Convention.

6                     The RRT’s decision was a “judicially reviewable decision” (par 475(1)(b) of the Act); the Applicant was entitled to apply to this Court for review of it on certain grounds (s 476); and the Court has the jurisdiction provided by Part 8 of the Act, but no other jurisdiction, with respect to it (ss 485, 486).

7                     Mr Rajanayake’s case is that he is outside the country of his nationality, Sri Lanka, and is unwilling to return to it because of a well-founded fear of being persecuted for reason of political opinion.

Procedural background

8                     The applicant last arrived in Australia on 25 March 1998.  His wife and two children arrived with him.  All four persons were included in Mr Rajanayake’s application for a protection visa dated 21 April 1998 and received in the Department of Immigration and Multicultural Affairs (“the Department”) the following day, 22 April 1998.  The application was supported by an eight-page typed statement by Mr Rajanayake also dated 21 April 1998.  Except in respects not presently relevant, only Mr Rajanayake made specific claims under the Convention.  On 30 April 1998, the Delegate refused the grant of protection visas to Mr Rajanayake, his wife and children.  On 12 May 1998, they lodged with the RRT an application for review of the Delegate’s decision.  The RRT conducted a hearing on 14 June 2000.  On 26 October 2000 the RRT decided to affirm the Delegate’s decision.  On 4 December 2000, Mr Rajanayake filed in this Court his application commencing the present proceeding for review of the RRT’s decision.

The reasons for decision of the RRT

Claims and evidence

9                     Mr Rajanayake is Sinhalese and his claim was that he had a well-founded fear of persecution by reason of the fact that the Sri Lankan authorities imputed to him support for the Liberation Tigers of Tamil Eelam (“LTTE”), a Tamil organisation which seeks the establishment of a separate, independent Tamil state and which is in violent conflict with the Sri Lankan authorities.

10                  Mr Rajanayake’s claims made in his written statement in support of his application for the protection visa were along the following lines.  He was born in Colombo and lived with his parents in Moratuwa, in the southern part of Colombo.  His grandparents were connected by marriage to Tamils.  After race-based riots in 1977, his family’s Tamil relatives and friends left for abroad or moved to Tamil populated areas, except those who owned property located in the area where his family lived.  After riots in 1983, the combat between the LTTE and Sri Lankan security officers made it impossible for the relatives to live permanently in Tamil populated areas so they moved back to Colombo or went abroad. 

11                  Mr Rajanayake said that when he was studying at the Prince of Wales College in Moratuwa, he was involved in saving his Tamil cousins who attended the Ratmalana Hindu College some three kilometres away, from minor local racist attacks, and other Sinhalese branded him a Tamil and called him “Kottiya” (which means “Tiger”) and “Dhemala” (a very offensive term used by some Sinhalese to refer to Tamils).  Police officers and local thugs assaulted him on his way to and from the College when he accompanied his Tamil cousins.  After the riots of 1983, he was arrested by the Moratuwa Police who assaulted him for entertaining Tamil youths in his residence.  They threatened to take him to prison if he continued to associate with his Tamil cousins in Moratuwa.  He was released on the condition that he should not be seen accompanying his Tamil cousins again. 

12                  His parents advised him to cease entertaining his Tamil cousins in Moratuwa.  Due to the police interference in his daily life, his parents moved to Ratmalana where Tamils continued to live.  His Tamil cousins eventually moved to other places due to the police harassment and he visited them there. 

13                  Between 1983 and 1989 Mr Rajanayake became “involved in the Travel trade” and became well known to Tamils who approached him for travel arrangements.  Tamils were leaving Sri Lanka for good and wanted his help in connection with the urgent issue of travel tickets and visas.  His Tamil cousins and their friends frequently introduced new clients to him.  He became well known and respected in his office for his introduction of new clients.  However, in 1986 he was approached by Sinhalese thugs and police officers in civilian dress and was assaulted and threatened for having assisted Tamil clients.  His assailants demanded that he obtain cheap tickets for them within a fortnight.  He informed his manager who “settled” the issue with the individuals in question and told Mr Rajanayake to send those people to him in the future.

14                  After their marriage, Mr Rajanayake and his wife rented a house from her sister.  The sister’s husband, Muhuntha Ratnathurai, is a Tamil from Jaffna.  Mrs Rajanayake was employed by Air Lanka Limited and was in charge of sales and reservations by telephone.

15                  Mr Rajanayake became well known in Colombo as a travel agent who serviced Tamils.  Other travel agents became jealous of his success.  Police officers visited him at his work place and at his home from time to time to investigate false rumours that he was involved with the LTTE.  In May 1989, when Mr Rajanayake was taking details from three Tamil clients, police officers entered and arrested them and took them away.  Later he was required to attend the Wellawatte Police Station where he was taken into a room and questioned about his clients.  The police accused him of having dealings with LTTE cadres.  They warned him that they had received information about his dealings with Tamil customers and that he should be prepared to attend inquiries if they needed further clarification about his position.  When he returned to work, his employer told him to find another job.  He became employed by “Marion Enterprises”. 

16                  In 1991 Mr Rajanayake was offered a senior position at “Ravi’s Foreign Employment” as a manager.  His brother-in-law was involved in politics and entertained Tamils at his residence.  As Mr Rajanayake lived in the same house, he was interrogated with his brother-in-law in relation to Tamil detainees.  In late 1991 the two of them were taken to the Police Station and questioned at length about any connection they had with the LTTE.  The brother-in-law was taken to prison, but Mr Rajanayake was released on condition that he not depart his residence or workplace without police permission.  Muhuntha left Sri Lanka in 1992, after which Muhuntha’s mother and his brother, Suthesh Ratnathurai, both from Jaffna, “moved in with [his] wife’s sister to be of some help to her”.  Mr Rajanayake became friendly with Suthesh and accompanied him on outings.

17                  In his new job, Mr Rajanayake was given responsibility as a manager in the area of travel where he had to deal directly with customers and other travel agents.  Tamil customers were introduced from time to time.  His director advised him to keep away from his Tamil relatives because it would create more problems for the company. 

18                  In 1993 Mr Rajanayake and his wife moved from the home they rented from the wife’s sister.  From then until 1996, Mr Rajanayake had few problems, his director “looked after [his] interests”, and whenever there were police interrogations, his director settled any differences, even by bribing police officers.

19                  Suthesh accompanied Mr Rajanayake to the homes of his clients and introduced many Tamil clients to his travel agency.  Mr Rajanayake warned Suthesh to keep away from LTTE supporters, otherwise he would suffer the same fate as Muhuntha.  Unbeknown to Mr Rajanayake, Suthesh developed a relationship with a female work associate of Mrs Rajanayake at Air Lanka.  Suthesh used Mr Rajanayake’s van to visit his friends and relatives at night.

20                  In connection with the Central Bank bombing on 31 January 1996, a huge concrete slab landed in Mrs Rajanayake’s office and two of her workmates were killed and others injured, some of them being hospitalised.  The police began visiting every home suspected of involvement with the LTTE.  In February 1996, Mr Rajanayake and his wife were taken in for questioning.  He was paraded in front of “the hooded men”, identified as a LTTE supporter and severely beaten until he lost consciousness.  He was kept for nearly five days in a cell with other detainees.  He was called upon to sign a document acknowledging his guilt but refused to do so.  Eventually he was released with the help of his director, on condition that he should not leave Sri Lanka until the investigation was completed.

21                  When he arrived home, he learned that his wife had been released the same night.  Suthesh “went missing”.

22                  In May 1997 police officers took Mr Rajanayake in for interrogation again and he was required to identify Tamil relatives, clients and friends.  He was interrogated, kicked and punched.  It came to light that a relative had helped LTTE militants to flee from Colombo by illegal means, and Mr Rajanayake was accused of having assisted by obtaining tickets for them.  He denied any involvement.  Following the giving of a guarantee by his director, he was released.

23                  Subsequently, Criminal Investigation Department (“CID”) officers visited his office frequently and questioned him as to any recent involvement with the LTTE militants.  When he went out he found himself being followed by persons unknown to him.  Police officers assaulted him on the streets and in public, calling him a “Kottiya”.  He feared he would be abducted.

24                  Mr Rajanayake visited his sister in Australia on a holiday in September 1997 in order to secure some peace of mind.  On his application for the protection visa, he said he had gone abroad from Sri Lanka on two occasions: to Japan from 28 October 1990 to 14 January 1991 for a “textile promotion” and to Australia from 11 September 1997 to 24 September 1997 for a “family wedding”.

25                  In February 1998 while visiting a Tamil client of his under his director’s orders, Mr Rajanayake was arrested by the CID Police and taken to Police headquarters.  He was found to be in possession of five passports belonging to clients of his. The officers began to assault and kick him until he bled.  They accused him of helping Tamils to flee Sri Lanka and to evade arrest.  They questioned him as to the reasons for his disappearance, that is, his visit to Australia the preceding September.  When he replied that he had been on a holiday, they accused him of escorting Tamils to the airport and earning money illegally.  He was kept in custody for a week and was released on condition that he leave the country immediately.

26                  Mr Rajanayake moved to Mutuwal and stayed with a friend of his until his wife arranged for him to leave the country.  With the help of an agent known to his director, he left Sri Lanka with his wife and two children, arriving in Australia with them, as noted earlier, on 25 March 1998.

Findings and reasons

27                  I turn now to the RRT’s treatment of Mr Rajanayake’s claims.  The RRT accepted that Mr Rajanayake was of Sinhalese ethnicity and of the Roman Catholic religion, that he was born in Colombo in 1964, and that he has lived in Colombo or Moratuwa, which is described as being some fifteen kilometres south of Colombo, all his life.  The RRT noted he had lived in the same street, although at two different addresses in it, for at least the past ten years prior to his departure from Sri Lanka.  It noted that he had married in 1986 and that his wife was also Sinhalese and Roman Catholic and had been born and resided in Colombo all her life.  They had a daughter born in 1988 and a son born in 1990, both of whom had travelled to Australia with their parents.

28                  The RRT described Mr Rajanayake as a “travel executive”.  It noted that in his application for the protection visa, he gave details of a “solid employment history in that industry from 1983 with only one short gap, between October 1990 and March 1991, when he was not employed”, for part of which period “he was travelling in Japan for business.”

29                  The RRT observed that according to Mr Rajanayake’s visa application, he had had to travel out of Sri Lanka on two other occasions prior to his most recent journey to Australia.  As noted above, he travelled to Japan for business on 28 October 1990, returning to Sri Lanka on 14 January 1991, and travelled to Australia to attend a family wedding on 11 September 1997, returning to Sri Lanka on 24 September 1997.  The RRT observed that Mr Rajanayake’s passport was issued in August 1990 and was subsequently renewed on 7 July 1996.  It recorded that on 21 April 1997 he was granted a Visitor’s Visa to travel to Australia which permitted multiple entries into Australia, which was valid for three months from the date of each arrival, and which expired on 21 April 1998.  Mr Rajanayake had obtained that Visa by attending the Australian Consulate in Colombo on 21 April 1997.  His last arrival in Australia was on 25 March 1998.  His wife’s visa was of the same kind and was granted on 3 September 1997.

30                  After giving an account of the claims made by Mr Rajanayake in his typewritten statement and of his evidence given at the hearing before the RRT, and referring to independent country information about Sri Lanka, the RRT said it did not accept Mr Rajanayake’s evidence as truthful.  It found he had fabricated his claims in order to establish a well-founded fear of persecution for an imputed political opinion, while not having that fear at all.  The RRT did not accept that Mr Rajanayake had ever been arrested or imprisoned or even suspected of support for the LTTE, let alone been subjected to mistreatment on that account.

31                  The RRT observed, firstly, that there was no supporting evidence for Mr Rajanayake’s claims and that independent country information showed that Sinhalese persons do not support, and are not suspected by the security forces of supporting, the LTTE or its methods.  The RRT said it accepted that country information in preference to Mr Rajanayake’s evidence.

32                  A second reason why the RRT did not accept Mr Rajanayake’s uncorroborated claims was that, according to the RRT, he made several of them for the first time at the hearing or significantly altered at the hearing claims he had made earlier.  I will discuss this aspect of the RRT’s Reasons for Decision below.

33                  Thirdly, the RRT said it did not accept Mr Rajanayake’s uncorroborated claims because they were inherently contradictory, and, in several respects, illogical.

34                  Fourthly, the RRT noted that Mr Rajanayake had not sought Australia’s protection when he first came here in September 1997, preferring to return to Sri Lanka where, on his present evidence, he had already been arrested, detained and mistreated on five separate occasions, harassed and followed by other Sinhalese and by police officers, and had only four months previously been arrested, detained for one week, physically mistreated, beaten, forced to identify his brother-in-law and possibly trigger problems for him, have the police go through his files at work looking for incriminating evidence and have his employer have to pay a bribe in order for him to be released from custody.  The RRT made a positive finding that the reason why Mr Rajanayake returned to Sri Lanka in September 1997 was that he had no fear of any Convention related harm befalling him. 

35                  Fifthly and finally, the RRT thought significant the fact that Mr Rajanayake applied for a protection visa only on 22 April 1998, the day after his multiple-entry Visitor’s Visa expired, notwithstanding that he had arrived in Australia a month previously, having just come from being in hiding in fear of persecution, and presumably must have known when he arrived that his visa would expire within the next month.  The RRT acknowledged that this delay was not considerable, but in the context of his previous return to Sri Lanka and the precision of the timing of his application for the protection visa, together with the RRT’s finding that he had fabricated his claims, the delay supported the conclusion that he had no fear of Convention related persecution when he applied for the protection visa or subsequently.

Reasoning on Present Application for Order of Review

36                  The grounds of review on which Mr Rajanayake relies are set out in his Further Amended Application for an Order of Review filed on 2 March 2001.  The submissions of counsel for Mr Rajanayake were, however, organised differently from the way in which the grounds of review were organised in that document.  First, Counsel addressed particular 2(a) and ground 3.  Secondly, he addressed particulars 1(a) and 2(b).  Thirdly, he addressed particulars 1(b)-(i).  I will proceed in accordance with the structure of counsel’s submissions and will set out the respective grounds and particulars of them in turn.

A.  Particular 2(a) and ground 3

“2.       The Tribunal erred in law, being error in the interpretation of the law or in the application of the law to the facts as found.

Particulars

(a)        The Tribunal failed to address an issue that was raised by the material and evidence before it, being whether the applicant was considered by the police to hold a political opinion sympathetic to or supportive of Tamils because of his association with Tamils.

(b)        …

3.         The Tribunal failed to observe procedures that it was required by the Act to observe.

Particulars

(a)       The Tribunal failed to make findings on material questions of fact, being whether:

i.          The applicant was harassed and villified by Sinhalese Sri Lankans because of his relationship to and contact with Tamils.

ii.         The applicant was arrested and assaulted in 1983 because he entertained Tamils in his house.

iii.        In 1986 the applicant was assaulted and threatened for assisting Tamil customers of his employer’s travel agency.”

37                  The attack which counsel for Mr Rajanayake made on the RRT’s reasoning under this head arises from its acceptance of evidence from the Department of Finance and Trade (“DFAT”) that there is no evidence that Sinhalese persons support, or are suspected by the security forces to support, the LTTE or its methods.  But counsel for Mr Rajanayake says that his client’s claim was otherwise.  He submits that Mr Rajanayake’s claim before the RRT was that the police well knew and understood that he was not an LTTE supporter but exploited his association with Tamils to engage in extortion.  Counsel submits that Mr Rajanayake was “an easy target” because, whatever the position might be in relation to other Sinhalese, Mr Rajanayake had the Tamil associations referred to earlier which provided the police with a basis on which they could plausibly allege that he supported the LTTE.

38                  Counsel referred to Mr Rajanayake’s claims:

·        that he saved his Tamil cousins from local racist attacks from time to time and that due to his family background he was branded as a Tamil and was called “Kottiya” and “Dhemala” by fellow Sinhalese;

·        that police officers and local thugs assaulted him on the way to and from College when he was accompanying his Tamil cousins;

·        that after the riots of 1983, he was arrested by the Moratuwa Police and was assaulted for entertaining Tamil youths in his home and that those police threatened to take him to prison if he continued to associate with his Tamil cousins in Moratuwa;

·        that after leaving school, Mr Rajanayake obtained employment at a travel agency where he had a number of Tamil clients who were introduced by his Tamil cousins;

·        that in 1986 he was approached by Sinhalese thugs and police officers in civilian dress and was assaulted and threatened for assisting his Tamil customers and that the thugs and police ordered him to obtain cheap tickets for them within a fortnight;

·        that in May 1989, while Mr Rajanayake was dealing with three Tamil clients, police officers entered his office and arrested them and took them away, and he was ordered to attend the Wellawatte Police Station where he was accused of having dealings with LTTE cadres and told that the police had information about his dealings with Tamil clients and that he should be prepared to “attend any inquiries [if] they needed clarification from [him].”

39                  In the course of the hearing before the RRT Mr Rajanayake testified that the police arrested people for whose release they might obtain a bribe.

40                  Counsel for the Minister submits in the first place that Mr Rajanayake’s claim was, at least originally, simply one of imputed political opinion, that is, one that the authorities imputed to him support for the LTTE.  In support, counsel referred to the following parts of Mr Rajanayake’s written statement :

“The majority of the Sinhala communities avoid having contacts with the Tamils in fear of LTTE connections.”

“The innocent Sinhalese and Tamil folks who are caught in the middle of the above controversies tend to live in fear of being caught by the authorities in suspicion of LTTE connections.” 

“I was identified as a LTTE supporter and was severely beaten till I lost consciousness”.

“I was kicked and punched by the officers and was questioned as to Suthesh and my connections with LTTE and our involvement in travel trade.”

41                  Counsel for the Minister accepts, as was inevitable, that Mr Rajanayake’s claim was that his Tamil connections formed the basis of the authorities’ treatment of him.  Counsel for the Minister also accepted that Mr Rajanayake had claimed, although late in the day, that the police were motivated by a desire to make money.  Indeed, the RRT stated in its Reasons for Decision (par 32):

“The applicant stated that the police know there are people in Sri Lanka who make connections with the LTTE in order to make money, and that the police see this as an opportunity themselves for making money”.

42                  The way in which counsel for Mr Rajanayake puts his case demonstrates some ingenuity, but ultimately I do not think it succeeds.  The finding of the RRT which Mr Rajanayake cannot, and does not, seek to escape is that there is no evidence that Sinhalese persons support, or are thought by the authorities to support, the LTTE or its methods.  But counsel says that his client’s case before the RRT was not that he supported, or was thought by the authorities to support, the LTTE or its methods.  He says that Mr Rajanayake’s case was a different one with which the RRT did not grapple.  This was that while the police did not at all believe that Mr Rajanayake supported the LTTE or its methods, they said they suspected him of doing so with a view to extorting money from him.

43                  There is no indication in Mr Rajanayake’s statement of 21 April 1998 of a claim of this kind.  The thrust of the statement is one of persecution by the police because of genuinely suspected support for the LTTE because of Mr Rajanayake’s Tamil associations.  The statement does refer to the demand made by Sinhalese thugs and police officers in 1986 for cheap tickets and to Mr Rajanayake’s “director” having settled differences “even by way of bribing the police officers” on the few occasions when he had problems between 1993 and 1996.  But these instances do not assume particular importance and the statement clearly conveys the claim that the police officers’ suspicion of Mr Rajanayake was genuine.

44                  In his oral testimony before the RRT, Mr Rajanayake introduced yet a further dimension to his claim.  This was that the police wished to make an example of him to other Sinhalese. He said that the police wished to demonstrate to the public that they were arresting and then releasing individuals who were well known, as he was.  Frankly, I find this difficult to understand against the assumed background that Sinhalese do not support the LTTE or its methods and that everyone concerned knows this to be the case.

45                  The RRT’s acceptance of the fact that Sinhalese are not suspected of sympathising with the LTTE (based on documentary evidence from DFAT) seems to me to be an answer to the claim as formulated by counsel for Mr Rajanayake.  As so formulated, the claim appears to be that the police were practising extortion on Mr Rajanayake.  On this view of matters, what they were doing was not persecution for reason of political opinion at all.

46                  In sum, once the case made on behalf of Mr Rajanayake is reformulated so as not to be a claim of fear of persecution for actual or imputed political opinion, it is reformulated so as to take it outside the Convention definition.  But as I said earlier, I think that the better view is that Mr Rajanayake’s true claim was one of imputed political opinion within the definition which the RRT effectively rejected for the reasons it gave.

B.  Particulars 1(a) and 2(b)

“1.       There was no evidence or other material to justify the making of the decision.

Particulars

(a)       The Tribunal based its decision on the existence of a particular fact, being that the applicant was required to set out all his claims for a Protection Visa prior to his Tribunal hearing, and that fact did not exist.

…”

2.         The Tribunal erred in law, being error in the interpretation of the law or in the application of the law to the facts as found.

Particulars

            (a)        …

(b)       The Tribunal misinterpreted the function and purpose of a hearing called pursuant to s 425 of the Act.”

47                  Subsection 425(1) of the Act on which Mr Rajanayake relied is as follows:

“The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

48                  The RRT gave as a reason for its not accepting Mr Rajanayake’s uncorroborated claims, that he “made significant new claims at the hearing which he had never before raised, or significantly altered his earlier claims”.  The RRT gave eight instances.  It then said it did not accept either the eight new or significantly altered claims themselves or Mr Rajanayake’s explanation for not having mentioned them prior to the hearing.  The RRT noted that Mr Rajanayake had confirmed at the start of the hearing that he had read his statement in English and that it was accurate.  But the RRT thought it differed significantly from his oral testimony.  The presiding Member said that she did not accept that Mr Rajanayake would have failed to notice the differences when he read his statement.  She noted that Mr Rajanayake attempted to blame his adviser for some of the differences and that he had explained that when his statement was written he had “many problems on his mind”.

49                  I will deal shortly with all eight instances referred to by the RRT, but it is convenient first to note how Mr Rajanayake submits they support particulars 1(a) and 2(b).  He submits that the RRT’s reliance on the eight instances shows that it based its decision on the non-existent fact that he was required to set out all his claims prior to the hearing (particular 1(a)) and that it erred in law by thinking that s 425 of the Act did not permit him to elaborate on his claims when he appeared before the RRT (particular 2(b)).

50                  I will now refer to the eight claims before returning to deal with the general issues raised.  In respect of all of the eight claims, I will begin by setting out what the RRT characterised as the new or altered claims at the hearing.

1.         “That he was assaulted by the police during the 1983 arrest.” 

51                  In his written statement, Mr Rajanayake said that after the riots in 1983 he was arrested by the Moratuwa Police and was assaulted for entertaining Tamil youths in his residence.  The Minister therefore accepts that in substance the RRT was wrong to say that the claim that he was “assaulted by the police during the 1983 arrest” was a new or altered claim made for the first time orally at the hearing.

2.         “That he was detained for one week, tortured and that a bribe was paid for his release after the arrest in 1991.”

52                  In his written statement Mr Rajanayake merely said that in the latter part of 1991, Muhuntha and he were taken to Nugegoda Police Station and were questioned at length as to their connections with the LTTE.  He said that Muhuntha was taken away to prison, while he (Mr Rajanayake) was released on condition that he should not move out of his residence or work place without police permission.  At the hearing before the RRT, Mr Rajanayake elaborated, in response to a question by the presiding Member, that he was detained for one week and was tortured to a certain extent during that period and that a bribe was paid for his release. 

53                  Counsel for Mr Rajanayake submits that

·        Mr Rajanayake’s statement fulfilled the role of answering questions in the form of application for a protection visa which he had signed, and that to omit to mention the matters referred to did not amount to a failure to answer any question in the form;

·        s 425 of the Act contemplates that the evidence to be given on the hearing before the RRT will be more than a mere repetition of what has been already stated in the application for the visa; and

·        Mr Rajanayake’s elaboration was in answer to a question put by the presiding Member. 

I will return to these three submissions below.  They were made in relation to all eight allegedly new or altered claims.

3.         “That his wife was mistreated by police when she was arrested in February 1996.”

54                  In his written statement, Mr Rajanayake said in relation to his wife, relevantly, that in February 1996 she was taken in for questioning and was released the same night after the police officers had obtained details of her co-employees and people who lived at the residence of Mr and Mrs Rajanayake.  In his oral testimony before the Tribunal Mr Rajanayake said that when he asked her what had happened, she cried and said she was questioned about colleague Tamil employees, details of whom she had given to the police.  Mr Rajanayake told the RRT that his wife was not willing to tell him anything else and he thought that if he had questioned her further, what she said in reply might affect the family life of himself, his wife and their two children.

4.         “That a bribe was paid for his release from arrest in February 1996.”

55                  In his written statement Mr Rajanayake stated only that he was released with the help of his “director” on condition that he did not leave the country until police investigations were completed.  In oral testimony before the RRT, however, he said that his employer had paid a bribe for his release.

5.         “That he was detained for one week and a bribe was paid for his release in May 1997.”

56                  In his written statement Mr Rajanayake said that in May 1997 police officers took him for interrogation and directed him to identify Tamil relatives, clients and friends.  After giving an account of what happened while he was detained, he said that with his “director’s guarantee” he was released.  In his oral testimony before the RRT when asked about the meaning of the expression “director’s guarantee”, he said what he had meant was “money”.

6.         “That his employer made the arrangements for his trip to Australia in September 1997.”

57                  In his written statement, Mr Rajanayake said he relied on his sister in Australia to get him down to Australia at least on a holiday to have some peace of mind.  The RRT asked Mr Rajanayake whether he had any difficulty getting documentation to depart the airport, to which he replied that he had no difficulty because his “director” was there and “did everything”.  He said he had to get a letter from his sister in Australia confirming that he was invited to attend her daughter’s wedding here.

7.                  “That a bribe was paid for his release from arrest in February 1998.”

58                  In his statement Mr Rajanayake said that in February 1998, while he was visiting a Tamil client under his director’s orders, he (Mr Rajanayake) was arrested by the CID police and was taken to headquarters.  After recounting what happened there, he said he was kept in custody for a week and was released on condition that he leave Sri Lanka immediately.

59                  Before the RRT, in response to a question as to whether he had had to pay a bribe to obtain his release, Mr Rajanayake replied that he did not “spend money” out of his own pocket but that he heard later that his “boss” had “spent a lot of money in releasing [him]”.

8.         “That he spent the period after that release (February 1998) until his departure for Sri Lanka (March 1998) in hiding at a friend’s house.”

60                  In his written statement Mr Rajanayake said that after he was released following the February 1998 detention, he moved to Mutuwal and stayed with a friend until his wife made arrangements for them to leave Sri Lanka.  He left Sri Lanka apparently on 23 March 1998.

61                  The presiding Member asked Mr Rajanayake why it took him four months after his release from detention to leave Sri Lanka to which he replied that he went into hiding at Mutwal and remained in hiding there until very close to the time when he left Sri Lanka for Australia.

62                  I return now to consider the general issues raised.

63                  I accept that Mr Rajanayake gave all eight “elaborations” in response to questions asked by the presiding Member.  This was inevitable since the nature of the hearing was one of a questioning of Mr Rajanayake by the presiding Member.  In some instances the question more obviously and directly prompted the giving of the answer than in others.

64                  Mr Rajanayake relies on Guden v Minister for Immigration & Multicultural Affairs (2000) 58 ALD 352 (“Guden”).  In that case, the Full Court considered that the RRT had based its decision, which was founded on the RRT’s disinclination to believe the refugee claimant, on the existence of two particular facts which did not exist.  The first was that the appellant was required to set out in his initial submission or application, in effect, the whole of his case which bore upon the issue of his political persecution.  The Court said the RRT had based its decision on that non-existent fact when it stated:

“It [the RRT] finds that such a significant part of his history would not have been overlooked in setting out the core of his claims¼”

The other non-existent fact was that the appellant had not made in his initial submissions a claim to have been an office-holder in the People’s Democratic Party (“HADAP”) in Turkey.

65                  Subsequently to the Full Court decision in Guden, Hely J dealt with a submission generally similar to the one made in this case by reference to s 425 of the Act in Nefiodova v Minister for Immigration & Multicultural Affairs [2000] FCA 179.  His Honour noted that counsel for the Minister accepted that if a decision was based on a particular fact for which there was no evidence, including a fact going only to credit, and the fact did not exist, the decision was flawed; his Honour referred to Arudselvan v Minister for Immigration & Multicultural Affairs [1999] FCA 622 at [56].  His Honour noted a submission that the RRT’s Reasons for Decision in the case before him indicated that an applicant for a protection visa was expected to make every claim at the outset, contrary to the intention of s 425 of the Act.  Of this submission, he stated (at [75]):

“The submission is misconceived.  An observation that a matter was raised for the first time at a hearing may be a legitimate observation if there were earlier occasions on which the matter, if true, would ordinarily have been raised.  The making of such an observation does not indicate any lack of understanding on the part of RRT of the purpose of a s 425 hearing.”

66                  With respect, I agree.  And whatever the position may be in another case, in this case the RRT did not state or assume that Mr Rajanayake was required to make the eight claims at the outset when he applied for the protection visa.  Nor did it state or assume that s 425 of the Act did not contemplate elaboration by an applicant in the course of the hearing before the RRT.

67                  Paragraphs 49 to 54 of the RRT’s Reasons for Decision comprise statements of the kind that one commonly finds a decision-maker making when he or she is weighing against credibility the fact that a witness has belatedly made an allegation which the witness could reasonably be expected to have made much earlier.

68                  It was for the RRT to form a view as to whether it was reasonable to expect Mr Rajanayake to have made the claims in question which he made in response to her questions on the hearing, at the outset.  It was the onerous responsibility of the presiding Member to determine, taking a realistic view of all the circumstances, the significance of his omission to make the claims in the form in which he made them on the hearing, in his earlier written statement.  These are not matters for me upon a review of the RRT’s decision on the limited grounds allowed by subs 476(1) of the Act.  It cannot be assumed that I would or might have regarded Mr Rajanayake’s omission to make at the outset the more detailed claims he made on the hearing, as the presiding Member regarded it. 

C.  Particulars 1(b) – (i)

Particular 1(b)

“1.      There was no evidence or other material to justify the making of the decision.

Particulars

¼

(b)   The Tribunal based its decision on the existence of a particular fact, being that the applicant was required to record in his initial application the address of every place that [sic – where?] he resided in Sri Lanka, no matter what the period of residence.”

69                  The RRT said it did not accept that Mr Rajanayake was obliged to hide with a friend “for the month or so after his claimed release and before his last departure from Sri Lanka”.  The RRT said that in the protection visa application, Mr Rajanayake had stated that his address had not changed from 1993 and that in his written statement he merely said he stayed with a friend, but did not indicate the purpose.  In the form of application for the protection visa, in response to a requirement that addresses outside Australia where the applicant had “lived for 12 months or more in the last ten years” be stated, Mr Rajanayake gave the address 23/1 Kanatte Road Boralasgamuwa as relevant to the period from 1993 to date.  In his written statement, Mr Rajanayake said that following his release from his detention in February 1998, he moved to Mutuwal and stayed with a friend until his wife made arrangements for the couple to leave the country.  It was in the course of the hearing before the RRT that Mr Rajanayake referred to having hidden at Mutwal.  Counsel for Mr Rajanayake submits that it was implied in his client’s written statement that he stayed with a friend until his wife made arrangements for them to leave the country, that Mr Rajanayake was “hiding” or “lying low” with the friend.  I agree.  I discuss below whether this conclusion makes out ground 1.

Particulars 1(c), (d), (e)

“1.      There was no evidence or other material to justify the making of the decision.

Particulars

¼

(c)    The Tribunal based its decision on the existence of a particular fact, being that the applicant had not claimed in his initial statement that he was assaulted by police in 1983, and that fact did not exist.

(d)   The Tribunal based its decision on the existence of a particular fact, being that the applicant stated in his written statement that after his arrest in 1993 he was told by his employer to find a new job, and that fact did not exist.

(e)    The Tribunal based its decision on the existence of a particular fact, being that the employment which the applicant commenced in 1989 was at, “a higher level” and that fact did not exist.”

70                  The Minister concedes that in substance, contrary to the RRT’s statement, these claims were made in Mr Rajanayake’s written statement.

Particular 1(f)

“1.      There was no evidence or other material to justify the making of the decision.

Particulars

¼

(f)     The Tribunal based its decision on the existence of a particular fact, being that the applicant claimed at his hearing that his employer was solely responsible for his being able to visit Australia in 1997, and that fact did not exist.

71                  The RRT said that in his written statement Mr Rajanayake claimed to have relied on his sister to get into Australia for his first trip and that his wife made the arrangements through an agent for the second trip to Australia, whereas at the hearing before the RRT he claimed that his employer made all the arrangements for the first trip.  The RRT continued by observing that since Mr Rajanayake’s visa did not expire until April 1998 and was valid for multiple entries, there would have been no necessity for his wife to engage an agent to make the arrangements for his second trip to Australia.  At the hearing before the RRT, Mr Rajanayake stated, in answer to a question, that he had no difficulty “getting documentation for travelling through the airport to leave” Sri Lanka because his “director” was there and “did everything”.  The RRT asked for clarification and Mr Rajanayake said that his “director” did not allow him to get his work done alone and did not hand matters over to him to look after, but was himself (the director) doing everything for him (Mr Rajanayake).

72                  Counsel for Mr Rajanayake submits that the state of the evidence was that his client was claiming that he had relied on his sister in Australia to get him down to Australia and on his director to help him get out of Sri Lanka.  I accept this analysis.

73                  Similarly, when the RRT remarked that it would not have been necessary for an agent to be engaged to make the arrangements for the second trip to Australia because the existing visa was valid for multiple entries and did not expire until April 1998, the RRT erroneously thought that Mr Rajanayake was asserting that an agent was necessary to help him to enter Australia whereas the claim was only that he needed the agent to help him leave Sri Lanka.

Particular 1(g)

“1.      There was no evidence or other material to justify the making of the decision.

Particulars

¼

(g)   The Tribunal based its decision on the existence of a particular fact, being that the applicant claimed that he required the assistance of an agent to enter Australia (rather than to leave Sri Lanka) in 1998, and that fact did not exist.

74                  This basis of ground 1 has been dealt with above.

Particular 1(h)

“1.      There was no evidence or other material to justify the making of the decision.

Particulars

¼

(h)   The Tribunal based its decision on the existence of a particular fact, being that the applicant did not claim in his initial statement that he was in hiding from February 1998 until the time he left Sri Lanka, and that fact did not exist.

75                  This basis of ground 1 has been dealt with above.

Particular 1(i)

“1.      There was no evidence or other material to justify the making of the decision.

Particulars

¼

(i)     The Tribunal based its decision on the existence of a particular fact, being that the applicant lodged his application for a Protection Visa after his tourist visa expired, and that fact did not exist.

76                  The Minister concedes that Mr Rajanayake lodged his application for a protection visa on 22 April 1998 and that his tourist visa granted on 21 April 1997 permitted entries into Australia up to 21 April 1998 and permitted Mr Rajanayake to remain in Australia for three months from the date of each arrival.  Since he arrived at Melbourne airport on 25 March 1998, the visa permitted him to remain in Australia until 25 June 1998, which was after the date of lodgement of his application for the protection visa.

77                  I turn now to the implications of particulars (b) to (i) of ground 1 discussed above.  Mr Rajanayake relies on the decision of the Full Court in Minister for Immigration & Multicultural Affairs v Rajamanikkam [2000] FCA 1023.  In that case, the RRT found the applicant for a protection visa not to be a credible witness and identified eight factors leading it to conclude that he had concocted his primary claims.  The refugee claimant attacked the RRT’s conclusions in relation to the eight factors.  The primary Judge decided that the “no evidence” ground (s 476(1)(g)) was made out because the RRT’s decision was based on the existence of particular facts which did not exist (s 476(4)(b)).

78                  On appeal the Full Court concluded that two of the factors upon which the RRT had concluded that the refugee claimant’s claims were concocted, were based on facts which did not exist.  The Full Court stated (at [49]):

“Thus it was the combination of factors which caused the Tribunal to doubt the respondent’s claims.  It was the accumulation of difficulties with his evidence which led to its conclusion.  Each of those two facts which have been shown not to exist was integral to a factor which comprised part of that accumulation.  Neither of those two matters is therefore of peripheral importance to the decision.”

The first two sentences apply in the present case.  But in my opinion the latter two, appropriately adjusted, do not, for the reasons which appear below.

79                  As counsel for Mr Rajanayake acknowledged, his client must also establish, in terms of par 476(1)(g) itself, that “there was no evidence or other material to justify the making of the decision”. 

80                  In Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181 (“Indatissa”), the Full Court said that it was necessary, but not sufficient, to make out the “no evidence” ground of par 476(1)(g), to satisfy the requirements of subs 476(4).  The Full Court said that the application of par 476(1)(g) cannot be allowed to involve a qualitative assessment of the evidence and other material before the RRT, and, in particular, does not entail a reconsideration of the “weight” which should be given to that evidence and other material (at [31]).  Counsel for Mr Rajanayake accepts that the view expressed by the Full Court in Indatissa poses a difficulty for him.

81                  In the present case, the RRT declared itself not to be satisfied that Mr Rajanayake was a person to whom Australia had protection obligations under the Convention.  I do not see how it can be said, in terms of par 476(1)(g), that there was no evidence before the RRT justifying its not being satisfied of that matter.  The RRT relied on numerous factors, independent of the facts referred to in particulars 1(b) to (i), which led it to find Mr Rajanayake not creditworthy (cf Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 (FC) at 220-222).  For example, it relied on the inconsistent independent country information, the making of new or significantly varied claims, the implausibility of various claims and the failure to seek protection on the occasion of the first visit to Australia.

Conclusion

82                  For the above reasons the application will be dismissed with costs.

Associate:        

Dated:              3 April 2001