FEDERAL COURT OF AUSTRALIA

"CCC" v Minister for Immigration & Multicultural Affairs [2001] FCA 682

IMMIGRATION LAW – Protection visa – Decision of Refugee Review Tribunal to affirm decision of the Minister not to grant protection visa – Whether failure to make a finding on a question of fact is a ground for review – Whether Tribunal failed to review the Minister’s decision – Whether Tribunal misunderstood the meaning of “persecution” – Whether Tribunal made a finding based on no evidence

Migration Act 1958 (Cth) Pt 8, ss 414; 430; 476

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 applied

Minister for Multicultural Affairs v Anthonypillai [2001] FCA 274 referred to

Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 referred to

Handa v Minister for Immigration & Multicultural Affairs [2000] FCA 1830 referred to

“CCC” & “NNN” v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V627 OF 2000

MARSHALL J

MELBOURNE

8 JUNE 2001

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondent’s costs of the application, including reserved costs, to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

1                     The first applicant, CCC, is a Sri Lankan national of Tamil ethnicity. NNN is her daughter. CCC and NNN entered Australia on 9 September 1997. CCC applied on behalf of herself and NNN for protection visas on 8 December 1997. On 5 February 1998, a delegate of the respondent Minister (“the Minister”) refused the application. An application for review of that decision was lodged with the Refugee Review Tribunal (“the RRT”) on 10 March 1998. An oral hearing was conducted by the RRT on 21 June 2000. In a decision dated 10 July 2000 the RRT affirmed the decision of the Minister not to grant protection visas to the applicants.On 23August 2000, the applicants applied to this Court for an order of review under Pt 8 of the Migration Act 1958(Cth) (“the Act”) in respect of the RRT decision.

Relevant Claims Advanced by CCC

31In the original application for a protection visa CCC answered the question, “why did you leave [Sri Lanka]”, by referring to a range of matters including the following:

·a fear of rape or death from the security forces

·living alone with NNN, she considered herself and NNN to be in a vulnerable situation exposed to “serious abuse of sexual assault, harassment and extreme danger from the drunken armed forces who came to check the houses at all times of the day and night.” [This being a reference to the security forces checking Tamil homes for the presence of LTTE operatives.]

2                     The claims canvassed in CCC’s original application to the Minister for a protection visa (“the original application”) focussed on her highly vulnerable position in Colombo as a Tamil and a woman, living alone with her 10 year old daughter. In particular, the application expressed CCC’s fear of herself and NNN being exposed to serious sexual assault and harassment by the Sri Lankan armed forces.

3                     In the original application, CCC claimed to have experienced physical assault at the hands of the Sri Lankan armed forces on a number of occasions. CCC claimed:

Later on in her application form, CCC said of the Sri Lankan Armed Forces that:“[The armed forces] have hammered me, brutally kicked me, attempted to shoot me down, hauled me, my daughter and my visitors into police jeeps in front of laughing and insulting crowds at all times of the day and night thus degrading us ….”

4                     CCC further claimed that she was often detained by the armed forces when Tamil relatives from Jaffna visited her. In a document attached to the original application ento the Minister’s Department was a three page typed document headed titled “Explanatory Notes relating to application for Protection Visa” CCC claimed:

“Because of terrorist activities, several times in a month our house will be checked by Sri Lankan army officers at gun point. Middle of the night they will come knocking on the door and about five officers will walk right in and ask for the identity and ask several questions and check the house and pull it apart. This type of life made me very fearful not knowing when they are coming for me.

Several times I with my daughter had been hauled into a police jeep in the middle of the night and taken to the police station and questioned at gun point about the people who come to visit us. There were relatives from the North who have come to visit us and stayed over. We were expected to register them with the police. But within one night this cannot be done. But before we could do this someone in the flat area had called the police and informed them that there are some Tamil Tigers in our house. The TV and news papers constantly advertise that people should be more observant and if they see any new faces in the area to inform the police immediately for necessary action. So several times along with my visitors I was locked up in the police station for days without any food or even water until the police satisfied themselves that we are in the clear. One day I had to spend about eleven days in the police station because one of my visitors was from Jaffna and they suspected me to be a terrorist as well. Only when my visitor was cleared that I too was released.”

5                     Victoria Legal Aid (“VLA”) provided assistance to CCC in respect of her hearing before the RRT. On the day of the hearing VLA provided the RRT with a written submission on CCC’s behalf. That submission referred to the following relevant claims, amongst others:

·        “The security forces regularly attended the applicant’s home in Colombo from 1995 onwards, searching for clues which would prove that the applicant had links with supporters of the LTTE. As a form of intimidation, the security officers assaulted the applicant by kicking her and pushing her around and pointing their guns at her.

·        In September 1997, the Sri Lankan authorities were informed that the LTTE were planning to blow up the domestic airport, telecom and waterboard in Colombo. The applicant left her home in order to take her daughter to school when she noticed army jeeps surrounding her neighbourhood. The security officers stopped [CCC] and ordered her to return home. About 5 security officers entered her home and pulled the place apart, searching her belongings. The officer in charge was drunk and smelled of liquor. He demanded that [CCC] picks [sic] up a piece of paper and hand it to him. He shouted at her and pushed her onto her bed. He shouted “this is what you people deserve” and he was naked from the waist down. [CCC] was screaming for her 10-year old daughter to help her. The officer in charge then attempted to rape [CCC] but her daughter entered the bedroom screaming. The other officer pulled the officer in charge off [CCC]. He proceeded to punch her in the face and shoulder. He injured her thigh. The officers then abused [CCC] and threatened that the next time they would get her and her daughter because that is what they deserved.

·        Since 1995, when [CCC]’s second marriage failed she lived alone in Sri Lanka. From this time onwards she lived in fear. She lived in a primary [sic] Singhalese area and was unable to move from this area. On a number of occasions she tried to move but nobody would rent her another property because she was Tamil and TV and Newspapers said not to rent to Tamils. In addition because she was alone with no husband and no male support she felt that she drew attention to herself. She lived in fear and was often abused verbally and ostracised by her friends and neighbours.

·        In Australia, the applicant’s brother-in-law assisted her to prepare her Application for a Protection Visa, including assisting her with the statement to the Department of Immigration and Multicultural Affairs. The applicant could not disclose to her brother-in-law the sexual abuse perpetrated on her by the Sri Lankan security officers due to her feelings of humiliation and because of the dishonour involved in disclosing such incidents to a Sri Lankan man. The applicant still has difficulty speaking about these events for the reasons outlined above.”

The RRT’s Relevant Findings

6                     The RRT accepted that CCC was a “Tamil-speaking Christian”. It purported to accept that she was previously married to a Sinhalese Muslim when no such claim was made. It also accepted that NNN was a Sri Lankan national.

7                     The RRT found:

“[In the context of civil war in Sri Lanka] it is legitimate for the government to impose stringent security measures in the capital city in an attempt to detain terrorists and reduce or prevent attacks on innocent civilians. Such legitimate measures includes [sic] the registration of visitors. Of course, those measures do not licence any of the authorities to persecute the people who are subjected to them.”

8                     The RRT found that Tamils in Colombo are not harassed by reason of their race per se but that “newly arrived Tamils from the North and Northeast may be at risk, particularly if they are young and male and cannot give good reasons for their presence in Colombo.” The RRT contrasted the position of such people with the position of CCC who is 52 years old and whose National Identity Card shows she was born in the Western Province and is a resident in Colombo. She also has a history of working in Colombo and speaks Sinhalese. The RRT also made reference to the purported (but incorrect) fact that CCC had married an ethnic Sinhalese.

9                     The RRT observed that CCC had experienced difficulties with a neighbour in 1996 and was the victim of insulting behaviour by bank guards, but found that such treatment did not amount to persecution. The RRT also commented upon CCC’s “numerous returns to Sri Lanka and her return to live in a predominantly Sinhalese area”.

10                  The RRT found that “it [was] not plausible that [CCC] would be kept [at the police station] for a prolonged period until a particular relative [who had come to stay with CCC] was cleared.” The RRT later said that CCC’s claim that she was detained and mistreated for several days was “contrived or at least highly embellished”. It added that:

“The available information runs counter to the claim that landlords or people hosting their relatives in Colombo are detained until their tenants or guests are cleared of LTTE connections…At most, it accepts that [CCC] may have attended for a brief time to vouch for relatives and was not mistreated as she claims. Moreover, she can mitigate her fears that she might be harmed in similar circumstances in the future by refusing to accommodate her unexpected relatives until either she or they register their presence with the local authorities …”

It found that CCC had “exaggerated her experiences”. It also found that if CCC was threatened with harm, “[i]t is not credible that she would have continued to accommodate relatives without registering them”.

11                  The RRT also found that the claim that CCC was subjected to sexual abuse was not made until the hearing. It found that CCC “contrived the claim that she was subjected to sexual attack in September 1997” (see above at [5], second dot point).

12                  The RRT found that if contrary to its finding, CCC was subjected to sexual assault before she came to Australia, “[t]he government has implemented laws to protect women against sexual abuse and the Tribunal is satisfied that it [has] provided adequate protection for women in the Applicant’s situation”. It was “not satisfied that [CCC] faces a real chance of persecution because she is a member of a particular social group comprising ‘single woman at risk’”.

13                  Reference was made by the RRT to CCC making “several trips abroad and return[ing] to Sri Lanka”. The RRT also commented on the ease with which CCC and NNN left Sri Lanka and viewed that as an indication that they were of no interest to the authorities and would not be suspected of LTTE affiliation if returned to Sri Lanka, or persecuted for any Convention based reason.

Consideration of Competing Contentions

14                  Mr P Gray of counsel appeared for CCC and NNN pursuant to the Court’s pro bono assistance scheme. Mr J Gibson of counsel appeared for the Minister. Mr Gray prepared and filed comprehensive contentions of fact and law upon which he relied. At the hearing he focussed primarily on two submissions. He provided some further oral submissions on a third issue after the Court expressed an interest in that submission being developed. Mr Gray otherwise relied on his written contentions on the remaining issues without seeking to develop them orally.

Failure to Make a Finding Regarding Assaults at Home

15                  Mr Gray submitted that the RRT failed to comply with s430(1)(c) of the Act by failing to set out a finding on a material question of fact. The alleged material question of fact was whether Sri Lankan security forces assaulted CCC during visits to her home by kicking her and pushing her around and pointing their guns at her. It was contended that the failure to make a finding about that claim was a failure to observe a procedure prescribed by s430(1)(c) of the Act and consequently reviewable by the Court under s476(1)(a) of the Act.

16                  This submission cannot succeed in the light of the recent High Court judgment in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30(“Yusuf”). In Yusuf the High Court held that a failure by the RRT to make a finding on a question of fact did not amount to a failure to observe a procedure within the context of s476(1)(a) of the Act. In their joint judgment, with which Gleeson CJ agreed, McHugh, Gummow and Hayne JJ said at [77]:

“An alleged failure to make a finding of fact on a material question is not a failure to observe a ‘procedure… required’ by the Act. If it is an error, it is an error of substance. Moreover, it may greatly be doubted that an obligation to set out findings could be said to be a procedure which is to be observed in connection with the making of the decision in question, as the setting out of the decision and reasons assumes that the decision has already been made. It is, however, enough to say that the conclusion that, so far as now relevant, s 430 requires only the means that an asserted failure to make findings is not a breach of s 430. Accordingly, s 476(1)(a) is inapplicable.”

17                  It was further submitted that the failure to make a finding on the issue of assault at CCC’s home showed that the RRT had not engaged in a valid review under s414 of the Act. I reject this submission. There is no reason to believe that the RRT did not consider the applicants’ application for protection visas. In Minister and Multicultural Affairs v Anthonypillai [2001] FCA 274 (“Anthonypillai”) the Full Court at [78] said:

“…there is some scope, albeit limited, for the argument that the Tribunal may, in a particular case, have failed to “review” the decision of the Minister.”

18                  The Full Court in Anthonypillai then dealt with what it referred to as some “extreme” examples of how such a failure may occur, including a failure to address the correct question. I fail to see how anything the RRT did in this matter reveals that it did not properly consider the application before it.

19                  Finally Mr Gray contended that the failure to make a finding on the issue of assault at CCC’s home showed that the RRT had made an error of law as identified under s476(1)(e) of the Act. Mr Gray submitted that the RRT misunderstood the meaning of “persecuted” by not finding that CCC had a well founded fear of persecution on account of her race if returned to Sri Lanka by reference to the assaults that occurred in her home.

20                  I also reject this submission. In the Respondent’s Contentions of Fact and Law it was stated:

“It simply does not follow from the absence of any specific reference to claims of intimidation and assault that the Tribunal failed to appreciate that the claimed incidents could amount to persecution within the Convention definition. There is noting on the face of the decision to indicate that the Tribunal had departed from the correct understanding of persecution…”

With respect, I agree with this submission.  I also accept Mr Gibson’s submission that such a contention is essentially an invitation to the Court to engage in impermissible merits review.

Failure to Make a Finding Regarding the 1997 Sexual Assault Claim

21                  Mr Gray submitted that the RRT failed to make a finding on a material question of fact, namely whether the Sri Lankan government provided adequate protection for single women from sexual assaults by members of the armed forces or police. Mr Gray also submitted that the RRT misinterpreted the definition of “protection obligations” in the Refugees Convention by failing to consider that issue. In an allied submission Mr Gray submitted that the RRT’s decision was based on a non-existent particular fact, being that CCC had not made a claim about being subjected to sexual abuse until the hearing.

22                  At the time of the hearing, I did not find it necessary to call on Mr Gibson to respond orally to the above submissions, although I did have the benefit of reading his Contentions of Fact and Law on this topic. I am fortified in that view by the High Court’s judgment in Yusuf. It is now unnecessary to consider if “pre-Yusuf” I would have been persuaded by those submissions. I also reject Mr Gray’s allied submission. The RRT was correct in holding that the sexual assault claim was not actually made until the hearing in the VLA’s written submission (see [5] above).

The s430(1)(d) issue

23                  Mr Gray submitted that the RRT contravened s430(1)(d) of the Act by failing to refer to the evidence upon which it made a material finding of fact. The particular finding of fact was that it was not plausible that CCC would be kept in detention for a prolonged period until a particular relative was cleared by the authorities. Before making that finding the RRT said:

 “The available information runs counter to the claim that landlords or people hosting their relatives in Colombo are detained until their tenants or guests are cleared of LTTE connections.”

Mr Gray contended that such a statement does not comply with s430(1)(d) of the Act which requires the RRT to:

“prepare a written statement that … refers to the evidence or any other material on which the findings of fact were based.”

24                  The relevant “country information” consisted of a document produced in September 1999 by an arm of the United Kingdom government entitled “Sri Lanka Assessment”. The document refers to the fact that Tamil visitors to Colombo may be detained on the basis that they are suspected of LTTE affiliations. The document makes no reference to property occupiers being detained on account of hosting such Tamil visitors.

3025            Mr Gibson submitted that the RRT by referring to the “available information” was in effect saying that if property occupiers were being detained as well, one would expect to see that fact recorded in the United Kingdom document. I agree with that submission. I consider that the alternative submission put by Mr Gray, although superficially attractive, amounts to an attempt to discern legal error on the basis of an overly-technical approach to the way the RRT has expressed its reasons for decision. See Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 at 271-272.

26                  I have dealt with this issue out of an abundance of caution lest it be said that Yusuf covers only the question of the availability of s430(1)(c) as a ground of review under s476(1)(a) of the Act, as distinct from s430(1)(d) of the Act.

Other claims

27                  Mr Gray placed reliance on some other grounds of review. None of them have merit.

28                   The first of these grounds fastens upon a typographical error in the RRT’s decision in which it omitted the word “not”. At 13 of the RRT’s decision it was stated:

“…the Tribunal is satisfied that there is a real chance that [CCC] faces persecution for reason of her race, should she return to Sri Lanka.”

3229            I see no reason to defy commonsense by not observing that a typographical error was made. I would read in the word “not” prior to the word “satisfied” in the sentence quoted above. See by way of analogy Handa v Minister for Immigration & Multicultural Affairs [2000] FCA 1830 at [17] where Finkelstein J said:

“Although it may now be appropriate to construe legislation by ‘filling in the gaps’ in this way, there is always the danger that the court may be seen to be engaging in judicial legislation.  Hence the court must exercise extreme caution.  But, if the omission or defect is plain, there is now no reason in principle why the court should not supply the necessary words to give effect to the legislative intent, in cases where the omission or defect is due to inadvertence, mistake, accident or clerical error.”

3330            Another sundry submission referred to in Mr Gray’s filed contentions of fact and law was based on an incorrect finding of the RRT that CCC’s former husband was Sinhalese. This incorrect finding was only one element in a profile ascribed by the RRT to CCC (see [8] above). Such a finding was not one on which the decision of the RRT can truly be said to be “based”.

Conclusion and Order

3431            For the foregoing reasons the application will be dismissed and the Court will order as follows:

1.      The application be dismissed.

2.      The applicant pay the respondent’s costs of the application, including reserved costs, to be taxed in default of agreement.

Associate:

Dated:              8 June 2001