FEDERAL COURT OF AUSTRALIA

Sivapalan v Minister for Immigration and Multicultural Affairs

[2001] FCA 691

LAVINIA SIVAPALAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 348 of 2001

WILCOX J

30 MAY 2001

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant to pay the costs of the application.

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

REASONS FOR JUDGMENT

WILCOX J:

1                     This is an application for a review of a decision of the Refugee Review Tribunal given on 29 March 2001. 

2                     The applicant, Lavinia Sivapalan, was born in Malaysia of Tamil extraction.  She sought a protection visa on the basis that she had a well-founded view of persecution if returned to Malaysia.  It appears her parents, and perhaps some other members of her family, are still resident in Malaysia.  The basis of the applicant’s claimed fear of persecution is that she is a member of the Tamil race and that her family has been subjected to persecution by representatives of the LTEE, in pursuit of demands for financial assistance for their cause in Sri Lanka. 

3                     The Tribunal rejected the application for a protection visa basically because the member found implausible the applicant's account of various alleged incidents.  The member accepted that the applicant, and members of her family, may have come into contact with some LTEE fundraisers.  However, the member did not accept claims made by the applicant as to harassment, injury and kidnapping.

4                     The applicant appeared, on her own behalf, at the hearing in this Court.  However, she has apparently had the benefit of some legal advice and she indicated to me two grounds, apparently suggested by a lawyer, on which she wished to rely.  She added for herself a third point.  I am of the opinion that there is no substance in any of these points, having regard to the structure of the Migration Act 1958 and the limitations on the Court's jurisdiction.  I will deal briefly with each of them. 

5                     The first point made by the applicant, and this point apparently comes from the lawyer, is that the Tribunal's reasons for decisions contain no reference to a statement allegedly made by the primary decision-maker, the delegate for the Minister for Immigration and Multicultural Affairs, that the LTEE uses violence and extortion to raise funds. 

6                     It is factually correct that the Tribunal did not make any reference to this matter, although the Tribunal did quote references in published material to the LTEE running a sophisticated international fund raising campaign, including attempts to obtain financial support from Tamils living outside Sri Lanka.  However, there was no reference in the quoted material to violence or extortion.

7                     The difficulty with the submission lies in the fact that the Tribunal is required, by s 430(1)(c) of the Act to set out its findings only on "material questions of fact".  There is ample authority for the proposition that it is not necessary for the Tribunal to set out findings on each question of fact which is raised during consideration of a visa application or a review of a decision on an application.  The Tribunal is required only to set out its findings on those questions of fact which play a part in the decision-making process.

8                     The Tribunal made clear that it was unable to accept the applicant’s evidence that violence or extortion had been used against her family.  The Tribunal gave reasons for that attitude.  It is not for me to pronounce upon the validity of those reasons; they go to a question of fact.  However, it is fair to note the Tribunal considered, with some care, the factual allegations made by the applicant and gave plausible reasons why they should not be accepted.  Once the Tribunal reached that position, it was not material for it to determine whether, as a general proposition, the LTEE resorts to violence and extortion to raise funds from Tamils living outside Sri Lanka.  Whether or not it does so, the finding in this case is that the LTEE has not engaged in that activity in relation to members of the applicant's family.  Accordingly, it seems to me, there is no mileage in the first point made by the applicant, so far as success on review is concerned.

9                     The second point that was put, again apparently at the suggestion of the lawyer, is the Tribunal should have considered whether it was possible that the Tribunal was wrong in regarding the applicant's evidence as implausible and, if so, the effect of that possibility on a finding as to the existence of a reasonable fear of persecution.  The applicant added, again on the suggestion of the lawyer that this is particularly the case because the Tribunal accepted the applicant had had some contact with LTEE fund raising activities. 

10                  The actual statement by the Tribunal in relation to contact was in these terms:

“The Tribunal accepts that the applicant and her family may have come into contact with some LTEE fund raising activities.”

It will be seen this falls short of a positive finding of contact.  All that the Tribunal is doing is to accept the possibility of contact.  Nonetheless, the argument would be that it was necessary for the Tribunal to have taken into account that possibility, in considering whether it was possibly in error in regard to its finding that the applicant's evidence was implausible. 

11                  It seems to me that a primary function of the Tribunal is to reach conclusions about the facts that have been alleged in relation to past activity.  Fact finding in this area is difficult.  Applicants for refugee status generally speak about events that happened some time ago in another country.  It is difficult, sometimes impossible, to obtain corroboration of incidents that are claimed to have taken place.  Consequently, considerable care is required before the Tribunal reaches a conclusion rejecting an applicant’s account of alleged events.

12                  However, if, at the end of the day and after taking that care, the Tribunal is satisfied that it cannot accept the critical facts claimed by an applicant, it seems to me there is very little scope for it to apply the “what if I am wrong” approach.  To substitute for a finding, rejecting the plausibility of the facts claimed, an approach that asks what if I am wrong, and then acts on the basis that the claims are correct, would lead to nonsensical results.  I do not think any of the decided cases require the Tribunal to take that step.

13                  In the present case, as I have said, the Tribunal took some trouble to examine the various factual claims made by the applicant and gave reasons for rejecting their plausibility.  This was a matter for the Tribunal, but I see nothing strange or illogical about the Tribunal's reaction to the claims that were made.  I think it is clear the Tribunal concluded, with a significant level of confidence, that it was correct in rejecting the applicant’s claims.  Under those circumstances, it seems to me there was no obligation to apply the “what if I am wrong” approach.

14                  The third matter that was raised by the applicant, apparently not at the suggestion of the lawyer, was that this is not a case where relocation in Malaysia would be possible.  She referred to a submission that had been put to the Tribunal on her behalf, I think by a migration agent, and which was expressed in the following terms:

“Given that the LTEE have a wide network and the Tamils are recognisable and that the attitude of the police to and other discriminatory treatment of ethnic minorities is common across Malaysia no relocation is possible.”

15                  I understand the point of the agent's submission to the Tribunal.  However, I do not think it has any relevance to the Tribunal's decision.  This is not a case where the Tribunal rejected an application on the basis that relocation in Malaysia was possible.  Rather the Tribunal rejected the application for review on the basis that the applicant had not established facts in respect of the past which grounded a reasonable fear of persecution in the future.  The doctrine of relocation was irrelevant to the decision.  No doubt that is the reason it was not mentioned by the Tribunal in its reasons.

16                  In my view, each of the matters advanced by the applicant is without substance.  I have read the Tribunal's judgment with some care expecting that she would not be legally represented today.  I am unable to see any ground of review falling within s 476 of the Migration Act.  I think the application for review must fail.  

17                  The order that I make is that the application be dismissed with costs.

Associate:

Dated:              15 June 2001