FEDERAL COURT OF AUSTRALIA

Don Manuel v Minister for Immigration and Multicultural Affairs

[2001] FCA 487

MIGRATION – review of RRT decision to affirm Minister’s decision to refuse to grant protection visa – written statement of reasons for decision – preparation of statement of reasons – procedures required to be observed in connection with making of decision – required content of statement of reasons – obligation to set out findings on material questions of fact – failure to set out findings regarding documents upon which applicant relied – whether documents material – so-called “what if I am wrong?” test – whether RRT engaged in requisite process of speculation as to likelihood of future persecution.

Migration Act 1958 (Cth) ss 430, 476(1)(a)

Minister for Immigration and Multicultural Affairs v Singh  (2000) 98 FCR 469 followed

Rahman v Minister for Immigration and Multicultural Affairs [1999] FCA 73 referred to

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291-293 referred to

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 referred to

Muthukuda v Minister for Immigration & Multicultural Affairs [1999] FCA 1499 referred to

SHYMAN RANJITH THOTAWATTE DON MANUEL, YAMUNA MALKANTHI PATHIRANAGE and MELANI RAVEENA THOTAWATTE DONA MANUEL and MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V716 of 1999

WEINBERG J

2 MAY 2001

MELBOURNE

THE COURT ORDERS THAT:

1.                  The application be dismissed

2.                  The applicants 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

1                     This is an application under Part 8 of the Migration Act 1958(Cth) (the Act) for review of a decision of the Refugee Review Tribunal (the RRT).  The RRT had affirmed a decision of a delegate of the respondent refusing to grant the first applicant a protection visa.

2                     The grounds upon which such a review may be sought in this Court are limited by force of s 476 of the Act.  In the present application, the applicants rely solely upon ss 476(1)(a) and 476(1)(e) as the grounds of review.  Those paragraphs are as follows:

“(a)     that procedures that were required by this Act or the regulations to be observed in connection with the decision were not observed;

…

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

3                     The procedures that were required by the Act to be observed and which were said not to have been observed were those found in s 430 of the Act.  That section relevantly provides:

“(i)      where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

(a)               sets out the decision of the Tribunal on the review; and

(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.”

THE CLAIMs MADE BY THE APPLICANTS

4                     The first applicant (the applicant) is a Sri Lankan national.  The second and third applicants are his wife and daughter.  The claims of the second and third applicants are, however, based entirely upon the claims of the first applicant.  Nothing more need therefore be said about their positions.

5                     It is important to note at the outset that the applicant is Sinhalese.  He is now 37 years of age.  He arrived in this country, together with his wife and daughter, on 29 December 1995. He entered Australia on a Sri Lankan passport which had been issued on 13 November 1995.  It appears that on 18 December 1995 he was issued with a visitor visa which enabled him to enter this country lawfully.  It is of some significance that he did not apply for a protection visa until 30 June 1997.

6                     Prior to his departure from Sri Lanka in 1995 the applicant had been employed as a computer operator by the Sri Lankan Board of Investment (the BOI) for approximately ten years. The BOI is a semi-government organisation responsible for regulating overseas imports and exports.  The applicant held an executive position, supervising a number of data entry operators.  He claimed that among his duties he was personally required to check the contents of various containers upon their arrival at the port.

7                     The applicant claimed that in 1994 a new senior manager, who was Tamil, began to ask him to do things which he described in his initial application for a protection visa as “not right”.  He said, for example, that he was told that he was not to check the contents of certain designated containers.  He claimed that “as a person in an inferior position” it was his belief that he could not refuse to follow the orders of his superior.  He also claimed that he received gifts from various businessmen in return for his co-operation.  He said that he was told by his senior manager to accept these gifts, and to say nothing.

8                     The applicant claimed that in August 1995 he was told by his senior manager that an internal audit was about to be conducted.  However, on the day before that audit was scheduled to take place, a fire broke out in the computer section at the BOI, destroying all relevant records.  A week later the Criminal Investigation Department (CID) commenced an investigation into the cause of the fire.  The applicant said that he was informed by his senior manager that the investigation concerned the importation into Sri Lanka of a large number of weapons apparently destined for the benefit of the Tamil Separatist Group, the Liberation Tigers of Tamil Eelam (LTTE).  He said he was told that he could be in serious trouble and that he should take several weeks’ holiday in order to avoid questioning about his involvement in those matters.

9                     The applicant claimed that notwithstanding this warning, he reported for work the next day.  He said that upon his arrival he was told by a security guard that a junior employee in his section, who was a Tamil, had just been found murdered, that his senior manager had been arrested that morning, and that the CID were looking for him.  He said that he had then successfully hidden from the CID for about a month.  He said that through an agent, he subsequently obtained a passport and the visitor visa, and paid a large sum (in fact almost four times his annual income) to obtain those documents.  He said that he had also paid the agent to bribe local immigration officials to enable him to leave Sri Lanka. 

10                  The applicant claimed that he had been told that the police had been searching for him between August and December 1995.  He said that he believed that he was suspected of being responsible for the fire.  He claimed that if he were required to return to Sri Lanka he would be arrested and charged with arson. 

11                  The applicant claimed that he was suspected of having assisted the LTTE in smuggling weapons into Sri Lanka.  He claimed that the LTTE now viewed him as a threat. As a result he feared that he would be the target for a violent attack and was even at risk of being killed.

THE DELEGATE’S DECISION

12                  The delegate who first considered the applicant’s claim for a protection visa accepted that he had a genuine belief that he would be mistreated by the police if he were required to return to Sri Lanka.  He found, however, that the reasons advanced by the applicant for that belief did not fall within the terms of Article 1A(2) of the Convention Relating to the Status of Refugees 1951.  Article 1A(2) provides that this country has protection obligations to 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…”.

13                  Given that the applicant openly acknowledged that he had been involved in illegal activities in Sri Lanka over a long period of time, including receiving bribes in return for having turned a blind eye to the contents of containers which it had been his duty to inspect, it was hardly surprising, the delegate concluded, that the Sri Lankan authorities would want to question him.  His fear of being mistreated by the police, though genuine, was not based on “reasons of race, religion, nationality, membership of a particular social group or political opinion”, but rather on his suspected involvement in criminal activities.

14                  The delegate concluded that it was implausible that the applicant should, for any reason, genuinely fear violence or death at the hands of the LTTE.  However, he went on to say that even if the applicant did hold such fears, the evidence was that, being Sinhalese, he would receive adequate state protection if he returned to Sri Lanka.

THE RRT’s decision

15                  The RRT summarised the applicant’s claims, as presented to it, as follows:

“The applicant claims that as a computer operator he was required to work in accordance with the orders of his superior.  He said that part of his role was to check certain ship containers and to submit documents to the central bank verifying loads moved under a scheme operating in the Free Trade Zone.  He said that he was in charge of seven data entry operators, but that he was only the second in charge of his section.

He claims that during 1994 his former supervisor was replaced by a Tamil who instructed him not to check various containers he was expected to check, but merely to submit the required documentation in the usual fashion, thereby falsely indicating all necessary checks had been carried out.  He claims that the containers he was instructed to ignore were used by ‘specific people’, apparently associated with trade in textiles.  He said that there were no other checks by customs officials, for example.

The applicant said that he fed into the computer all the data about companies with which his employing authority dealt and the relevant tax file numbers.  He said that some companies received a government subsidy under the free trade scheme even though their operations were not properly scrutinised.  He said that he occasionally received gifts or money from business people involved in trade and whose operations he did not properly check.  He claimed at the hearing, however, that he did not believe he was doing anything wrong and that it did not occur to him that he might have been implicated in corrupt or criminal activity.

He claims that in August 1995 he was notified there was to be an internal audit of his section and that he was to isolate all the material involving companies that had received favourable treatment.  He said that a fire occurred the day before the audit was due to occur and that he suspected two people who had been repairing the air-conditioning system shortly before the outbreak of the fire.  He said that his section was among those destroyed in the fire.

The applicant said that a week after the fire the Criminal Investigation Department (CID) carried out an enquiry.  He said that about 20 people, including his immediate supervisor, were questioned.  He added that his supervisor soon afterwards advised him to stay away from work and at the same time advised him that the authorities had asked about weapons supplied to the Liberation Tigers of Tamil Eelam (LTTE).

He said that he believed his supervisor advised him to stay away in case he was questioned and accused of involvement of the importation of arms for the LTTE.  He added that he thought his boss might have revealed to the authorities that he had not checked the containers before signing the appropriate documents or that he would be suspected by the LTTE of divulging the names of arms importers to the authorities.

The applicant said that he did not take leave from work as he had not done anything wrong.  He said that when he arrived at work as usual he was informed that a Tamil employee had been murdered, probably because he had been involved in illegality on behalf of Tamil business people or because he knew the identity of LTTE members.  He said that he learned at the same time that his boss had been arrested and, at the hearing, he said that he then formed a suspicion that his boss had been involved in weapons trade for the LTTE.  He said that he was also informed that the authorities were searching for him, so he then lived away from his own home until eventually leaving Sri Lanka.

He added that he also heard from his mother that police officers had been to her home and told her they wanted to question him, and that the house had been searched.  In his statement of 29 June 1997 he stated that police had indicated to his mother they wanted to ask him about importation of illegal goods and about taking bribes.

The applicant claims he heard last year that police officers had arrested a businessman in league with his former boss and had taken him to the family home, indicating they still wanted to question the applicant.

He said that he paid a very substantial bribe to an agent to obtain travel documentation and to arrange for his departure from Sri Lanka. 

The applicant also stated that there was a bomb blast in Colombo just after his departure and he will be suspected of complicity in that event.

He gave evidence that when a brother visited Sri Lanka in May 1998 he was questioned by the authorities who mistook him for the applicant.  He said that neighbours probably knew about the interest of the authorities in him and dobbed in his brother, they apparently also being mistaken about his brother’s actual identity.

The applicant also claims that in line with a union position he held from 1984 he was publicly identified with the United National Party (UNP), especially because he sought union endorsement of the UNP by the union.  He claims that he received death threats after the election of the People’s Alliance (PA) government in 1994.

In support of his application for a protection visa the applicant has lodged a range of documentation such as newspaper articles, along with other material including a letter purportedly from his former employer concerning the reasons for his dismissal.”

16                  The RRT rejected each of the applicant’s claims, essentially for the same reasons as did the delegate.  In its discussion of the evidence, and in its findings, the RRT commented that although it seemed unusual that a computer operator would be given responsibility for checking containers of cargo, and for preparing documentation attesting to the proper importation of goods, it was prepared to accept that such duties fell within the applicant’s overall responsibilities.  However, the RRT concluded that it was not credible, given the protracted civil war in Sri Lanka, that no independent checks would be made of the containers which the applicant was required to inspect.

17                  The RRT next found that it “defied credulity” that the applicant had not realised, as he had claimed at the hearing, that he had been implicated in corrupt or criminal behaviour.  In coming to that conclusion, the RRT observed that what the applicant had said before it differed significantly from what he had originally said in his statement of 29 June 1997 where he acknowledged that he had been involved in activities that he knew were “not right”.

18                  The RRT accepted that the applicant’s work was to have been the subject of an audit.  It accepted too that the scheduled audit had not taken place because of a fire which caused massive damage to his workplace.  The RRT noted that it was the applicant’s theory that the LTTE was responsible for the fire and that it was lit to prevent the audit from taking place.  However, it also noted that the newspaper reports regarding the fire which were submitted by the applicant suggested that its cause was unknown and had never been finally determined.   Those newspaper reports merely indicated that although the fire was thought to be caused by electrical problems, “subterfuge” [sic] had not been ruled out.  After considering all of this material, including the newspaper reports, the RRT concluded that it was implausible that the fire had been deliberately lit in order to prevent the scheduled audit from taking place.

19                  The RRT next turned to the applicant’s claim that he was suspected by the police of having been complicit in the supply of weapons to the LTTE.  In rejecting that claim, the RRT noted that the applicant had never been questioned by the CID about any such involvement.  It concluded that it was not credible that the applicant’s senior manager would have told him that he had been involved in supplying arms to the LTTE immediately before the senior manager was to be questioned by the police about that matter.  The RRT also concluded that it was not credible that large numbers of weapons could be imported undetected into Sri Lanka, over a substantial period of time, merely by arranging for the applicant not to carry out checks of containers for which he was supposedly responsible. 

20                  Although the RRT was prepared to accept that a Tamil employee who worked in the applicant’s section at the BOI had been murdered, it found that the reasons proffered by the applicant as to the motive for that crime were entirely speculative.  It also found that there was no evidence to corroborate the applicant’s claim that his senior manager had been arrested. It concluded that this claim should be rejected.

21                  The RRT noted that the Sri Lankan police had had ample opportunity to question the applicant prior to his departure from Sri Lanka had they been minded to do so. The fact that the applicant had not been questioned by the police strongly suggested that he was of no real interest to them.

22                  The RRT also noted that the applicant had been able to leave Sri Lanka under his own name, using his own passport, and passing through all security checks.  In those circumstances, the RRT concluded, it hardly seemed likely that he was wanted for questioning.

23                  The RRT accepted that the applicant had enlisted the assistance of an agent in obtaining travel documentation. However, it rejected his claim that he had paid the equivalent of four years’ wages for a passport and visa. 

24                  The RRT found that it was not credible that the applicant’s mother had been visited by the police, or that her home had been searched.  It also concluded that it was not credible that a businessman associated with the applicant’s former senior manager had been arrested in 1998, long after the applicant’s departure from Sri Lanka, taken to the applicant’s family home, and there told that the authorities still wished to question him. 

25                  In relation to the applicant’s claim that he was suspected of being involved with the LTTE, the RRT noted that the applicant was Sinhalese, and unlikely therefore to be seen as a supporter of Tamil separatists.  It concluded, therefore, that the applicant did not face a “real chance” of persecution by reason of any perceived association with the LTTE.  In arriving at that conclusion the RRT gave weight to certain “country information” regarding relations between members of the Sinhalese community and the LTTE. 

26                  Not surprisingly, the RRT rejected the applicant’s claim that when his brother visited Sri Lanka in May 1998, he had been questioned by the authorities, who mistook him for the applicant.

27                  Finally, the RRT concluded, as had the delegate, that any action on the part of the Sri Lankan authorities which might be taken against the applicant if he were required to return to Sri Lanka would relate to his suspected involvement in matters of a purely criminal nature, and would not be based upon any Convention related grounds.  In that regard, whether the applicant had resigned from his employment, or had left precipitously, without having formally resigned, was hardly relevant.

28                  Turning to the matter of the applicant’s supposed political activities through his union involvement, the RRT rejected his claim that he had received death threats because of his past support for the UNP.  It noted in that regard that he had come to no physical harm for more than a year after the general elections in 1994. 

29                  The RRT concluded that even if it were to accept the applicant’s evidence about his involvement with the UNP, as well as his claims of having been threatened with harm, those claims would not bring him within the scope of Article 1A(2) of the Convention.  It referred to certain remarks of Hely J in Rahman v Minister for Immigration and Multicultural Affairs [1999] FCA 73 in support of that conclusion.  The RRT said:

“As well, the Tribunal notes the following remarks of Hely J in the Federal Court matter of S K M Habibur Rahman v Minister for Immigration and Multicultural Affairs (unreported) 10 February 1999 where his Honour considered claims in relation to Bangladesh, but similar to those in the present case:

“Despite finding that violence was a pervasive part of the culture of political life in Bangladesh, the RRT was of the view, based on the independent evidence, that members or supporters of the Jatiya Party were not subjected to treatment which could be characterised as persecution by members or supporters of other political parties.  Although RRT accepted that if the applicant returned to political activities upon returning to Bangladesh he could be harmed by members of other political parties, if that occurred, it would be in the context of acts of violence committed by members of all Bangladesh political parties, and not as a result of persecution.

The fact that all political parties are from time to time involved in armed clashes with the police and with each other, as part of the political milieu of Bangladesh, does not mean that there is persecution within the meaning of the Convention, because the violence lacks the selective or discriminatory quality which is inherent in the notion of persecution, and because it lacks the requisite “official” quality in the sense that it is official, or officially tolerated, or uncontrollable by the authorities of Bangladesh.””

30                  The RRT said that in reaching its decision regarding the effect of the applicant’s past political activities upon his position in Sri Lanka it had also given consideration to a number of documents upon which he had relied.  It concluded from those documents, and from several others, that political violence in Sri Lanka was generally perpetrated by individuals at local levels during election times, that the authorities usually acted to quell such violence, and that citizens had equal access to the law and to police protection regardless of their political allegiance.  It observed:

“In assessing all of the material before it the Tribunal finds that the applicant does not face a real chance of persecution for a Convention reason.

In considering all the circumstances of this case, including cumulatively, the Tribunal finds that the applicants do not have a well-founded fear of persecution for any Convention reason.”

THE APPLICANT’S SUBMISSIONS

31                  When this matter was called on for hearing, counsel for the applicant indicated that he had only just become aware of the fact that he had been working from a draft of the RRT’s reasons for decision, and not the version which the RRT had ultimately provided to his client. The matter was stood down to enable counsel to consider whether he wished to apply for an adjournment. Sensibly, he elected not to do so.  It became apparent that the RRT’s final version differed from the draft principally because it had been amended in order to delete all identifying references to the three applicants.  The final version also contained a more detailed summary of the material which the RRT had taken into account in arriving at its decision.  This was of some significance in the present proceeding because the applicant’s grounds of review complained, inter alia, that the RRT had failed to comply, in this regard, with the requirements of s 430 of the Act.

32                  Whereas the draft did not refer, in terms, to several of the documents upon which the applicant had relied, the final version did.  In particular, the final version referred specifically to the newspaper articles concerning the fire at the BOI, and it commented upon those articles.

33                  In the end, counsel for the applicant was really only able to point to two documents which, it was submitted, ought to have been the subject of specific findings by the RRT.  These documents were:

·                    a letter dated 25 September 1995 from an official of the BOI to the applicant which was in the following terms:

“Dear Sir,

VACATION OF POST

It is noted that you were absent from work since 14^th September 1995 without prior approval or any intimation whatsoever to the Management.

In the above circumstances, you are deemed to have vacated the post of Computer Operator (Statistics) Grade E1 you held in the Board on your own accord with effect from 14^th September 1995. 

Yours faithfully,”

·                    a bundle of Customs Goods Declarations (most of which were dated July 1995) concerning the importation into Sri Lanka of various goods.

34                  When pressed as to what possible relevance these documents might have to any issue before the RRT, counsel for the applicant could do no more than submit that the letter of 25 September 1995 provided some corroboration of the applicant’s account of how he came to leave his employment with the BOI.  This was said to be of importance to the applicant’s case. As for the Customs Goods Declarations, these were said to be relevant because they supported the applicant’s account of having been responsible for inspecting containers upon their arrival at the port.

35                  It was submitted on behalf of the applicant that the RRT’s failure to make findings about the truth of the matters contained in these documents should be regarded as a failure on its part to comply with the requirements of s 430 of the Act.  It was further submitted that this failure to comply with those requirements was a failure to observe procedures required under the Act and gave rise to a ground of review under s 476(1)(a).

36                  It is fair to say that the two remaining grounds in support of this application were barely touched upon in argument.  Firstly, it was submitted that the RRT had failed to engage in the required speculation encompassed within the “what if I am wrong?” test.  Second, it was submitted that the RRT had erred in the manner in which it had invoked the observations of Hely J in Rahman (supra) in dealing with the applicant’s claim that his role in union activities in Sri Lanka gave rise to a “well-founded fear of persecution”.

The respondent’s submissions

37                  It was submitted on behalf of the respondent that even assuming that the RRT had failed to comply with the requirements of s 430 of the Act (which was expressly denied) that failure did not give rise to a ground of review under s 476(1)(a).  It was accepted, however, that this was a formal submission only, having regard to the decision of a five-member Full Court of this Court in Minister for Immigration and Multicultural Affairs v Singh  (2000) 98 FCR 469. In the joint judgment of Black CJ, Sundberg, Katz and Heerey JJ, it was observed (at 481);

“…Ordinarily, materiality is an objective concept.  If the RRT fails to make a finding on a fact which is in truth, as a Court subsequently determines, a material fact, then s 430(1)(c) will not have been complied with, even though the RRT has recorded its findings in relation to the facts before it that it regarded as material.

The generally accepted view in this Court has been that the RRT is under a duty to make, and to set out, findings on all matters of fact that are objectively material to the decision it is required to make.  It must make findings on questions of fact that are central to the case raised by the material and evidence before it.  In this respect, s 430 sets a standard of decision-making the RRT is required to observe.”

38                  It was next submitted that neither the letter of 25 September 1995, nor the Customs Goods Declarations, were in any practical sense material to any issue in this proceeding.  There had never been any dispute before the RRT about the fact that the applicant had left the employ of the BOI immediately after the fire in 1995. The letter was of no assistance in determining the real issue, namely why the applicant had left his employment in that way.

39                  As to the Customs Goods Declarations, the RRT clearly accepted that the applicant had performed a role in inspecting containers of goods imported into Sri Lanka.  Indeed that had never been in issue, and therefore those documents had no real probative value.

40                  It was further submitted that the RRT had not been required, in the particular circumstances of this case, to engage in any speculation along the lines of the “what if I am wrong?” test.  It was submitted that the RRT had been sufficiently confident, in its findings as to the applicant’s credibility, to negate that obligation;  see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291-293 per Kirby J; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 and Muthukuda v Minister for Immigration & Multicultural Affairs [1999] FCA 1499.

41                  Finally, it was submitted that, when viewed in context, the RRT’s reference to the passage from the judgment of Hely J in Rahman reflected nothing more than its attempt to distil from what his Honour there said a statement of principle concerning the notion of “persecution”. That statement of principle was of general application. There was nothing inappropriate, it was submitted, in what the RRT had done.

conclusion

42                  In my view, there is no substance in any of the applicant’s contentions. 

43                  The letter of 25 September 1995 and the Customs Goods Declarations were not material to any issue which the RRT was required to determine.  There was no obligation on its part to refer, in terms, to those documents, still less to make any findings about their contents.  It follows that the RRT did not fail to comply with any obligation pursuant to s 430 of the Act.

44                  There is no need to say anything further about the applicant’s remaining claims.  They are entirely without merit.  There was no need for the RRT to engage in the type of speculation called for under the “what if I am wrong test?” Further, there is nothing to suggest that the RRT failed correctly to apply the principles stated in the passage from the judgment of Hely J in Rahman.

45                  It follows that this application must be dismissed.  The applicants must pay the respondent’s costs.

Associate:

Dated:              2 May 2001