FEDERAL COURT OF AUSTRALIA

Gnanasambanther v Minister for Immigration & Multicultural Affairs

[2001] FCA 693

MIGRATION – application forprotection visa – appeal from single judge dismissing application for order of review of decision of Refugee Review Tribunal affirming decision to refuse visa – whether appellants members of a particular social group under Refugee Convention – whether Tribunal should have made inquiries concerning social group – whether failure constitutes ground for review Migration Act 1958 (Cth)

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

Minister for Immigration v Anthonypillai [2001] FCA 274 cited

Minister for Immigration and Multicultural Affairs v Ibrahim [2000] HCA 55 referred to

KANAGARATNAM GNANASAMBANTHER & ANOR v

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 2 OF 2001

SUNDBERG, EMMETT & FINKELSTEIN JJ

17 MAY 2001

SYDNEY

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellants pay the respondent’s costs of the appeal.

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

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

SUNDBERG J:

1                     I agree with the orders proposed by Emmett J and with the reasons his Honour gives for them.  I would add only one thing on the question of materiality as it appears in s 430(1)(c).  In a written submission prepared by the appellants’ solicitors in March 1999 and submitted to the Tribunal, the solicitors listed the eight claims made by the appellants.  None of them refers to the special position of Veemankamam, nor is that town or place even referred to in the seventeen page submission.  The omission of any reference to Veemankamam in this important document, coupled with the fact that no point was made of it in the conduct of the case before the Tribunal, so as to alert the Tribunal that the appellants’ residence in that place was an important matter, makes it impossible, in my view, to conclude that it was a material fact for the purpose of s 430(1)(c).

Associate:

Dated:              12 June 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

EMMETT J:

2                     The first appellant, Kanagaratnam Gnanasambanther, who is 79 years old, is a citizen of Sri Lanka.  The second appellant, Pathmavathy Gnanasambanther, is his wife.  She is also a citizen of Sri Lanka and is 72 years old. The appellants arrived in Australia on 16 June 1998.  On 30 July 1998 they lodged applications for protection (class AZ) visas with the Department of Immigration and Multicultural Affairs.  On 9 October 1998 a delegate of the respondent, the Minister for Immigration and Multicultural Affairs (“the Minister”), refused to grant protection visas.  On 22 October 1998 the appellants applied to the Refugee Review Tribunal (“the Tribunal”) for review of that decision.  On 26 July 2000, the Tribunal affirmed the decision not to grant protection visas. 

3                     From that decision, the appellants brought proceedings in this Court, seeking an order of review of the decision of the Tribunal.  The matter came before a judge of the Court who, on 22 December 2000, ordered that the application be dismissed with costs.  The appellants now appeal to the Full Court from the orders of the primary judge. 

grounds of appeal

4                     The Notice of Appeal specifies two grounds as follows:

“GROUND 1

His Honour erred in finding that the RRT was correct in failing to investigate a ground of possible persecution, namely a particular area, supposed to be strategic and a ‘no-go zone’ where the applicants lived and assisted for several years the LTTE, a militant group fighting for a separate state in the north of Sri Lanka, despite the contention that this ground was not advanced but evidenced in the material before the RRT.

Reasons.

a.         The above ground of possible persecution was implicit in references made by the applicants in the material before the RRT.  Therefore the matter was raised or relied on by the applicants.  A thread of description of this ground runs through the whole material, and there are a number of indicators of this ground of possible persecution in the material before the RRT.  Even if this ground of persecution is considered to be not raised by the applicants, it was incumbent on the RRT to deal with it.

b.         It is incumbent on the RRT to investigate all relevant grounds of possible persecution however, implicit those grounds may be.

c.         When applicants make a number of grounds of possible persecution, and the RRT rejects some grounds of possible persecution because of credibility issues, then the centrality and materiality of claims shift to those grounds which have been accepted by the RRT.  The RRT should indicate as to why the findings it made do not make someone a refugee.

d.         The RRT is not the sole arbiter of materiality of a claim, although this issue was not put to His Honour.

e.         Each ground of persecution raised or relied on by the applicants should be dealt with separately and appropriate reasoning should be given for each claim.  If it is clear that a particular ground of persecution is not dealt with by the RRT, a piece of reasoning in relation to another ground of persecution cannot be attributed to the ground of persecution in question.

f.          A mere re-assertion of an important attribute of the alleged ground of persecution is insufficient for the purposes for dealing with a claim.

g.         The reasoning given by the RRT is flawed and factually incorrect.

GROUND 2

His Honour erred in concluding that the RRT took the correct approach to the questions raised before it for determination by failing to apply law, ie, the Common Law test of causation to infer a Convention reason (either a particular social group or imputed political opinion).”

a          The RRT accepted that the applicants were assisting the LTTE for several years in the north of Sri Lanka.  The fact situation in Ground 1 should be added here to highlight the significance of the role played by the applicants in assisting the LTTE.  The applicants do not dispute the factual finding of the RRT, which accepted the applicants’ assistance to the LTTE in the north and rejected their involvement in Colombo.

b          The RRT characterised the role played by the applicants as a minor one, but failed to consider that even minor assistance to the LTTE could lead to persecution in a Convention sense irrespective of age.

c          There is plenty of authority to infer a Convention reason that the RRT failed to consider.

d          It is true that the RRT did not accept that the applicants were mistreated in Colombo.  This, however, does not imply that the applicants will not be persecuted in the future

There is evidence that even elderly people are mistreated for suspected involvement with the LTTE.  There is evidence that not only young people are suspected of LTTE involvement by the security forces.  Sri Lanka Monitor October, 1996 states:  ‘Torture in secret places of detention includes the assault of a 72-year old man with chains and the case of a 59 year-old man who had his hair pulled out and his fingers broken, before he was burned with cigarettes whilst being in detention in the Magazine prison in Colombo.’”

5                     Those grounds are said to be based upon ss 476(1)(a) and 476(1)(e) of the Migration Act (“the Act”).  In so far as the grounds are based upon s 476(1)(a), the appellants contend that there was a failure to observe the provisions of s 430(1)(c), which requires that where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that sets out the findings on any material questions of fact.  Section 476(1)(e) specifies as a ground that the decision involved an error of law, being an error involving incorrect interpretation of the applicable law, or the incorrect application of the law to the facts as found by the person who made the decision.

the tribunal’s findings

6                     The appellants’ claims before the Tribunal were to the effect that they fear returning to Sri Lanka, first, because their involvement with the Liberation Tigers of Tamil Eelam (“the LTTE”) may have been discovered by the Sri Lankan authorities, and secondly, because they fear that they would be approached by the LTTE to assist them. 

7                     The first appellant made allegations in a statutory declaration in the following terms:

“In June 1990 fighting broke out between the LTTE and the Sri Lankan army and our town came under intense shelling and aerial bombardment.  The LTTE had to move out and they took us with them to help with cooking and other duties.  We moved to Suthumallai, Manipay approximately 5 miles west of Veemankamam.  We lived in an LTTE compound in Suthumallai.  We were not able to take any of our belongings with us.  We had to cook and clean for the LTTE.  They wanted me to look at the LTTE accounts but I refused to do this and they did not force me to do this.  We were too frightened to flee the compound fearing we would face harm from the other militant groups and also from the Sri Lankan army as we would be viewed as supporters of the LTTE.  Veemankamam became a no-go area, although many parts of the Jaffna Penninsulawere under LTTE control.  We were unable therefore to return to our home.

…..

In December 1997 I was travelling on a bus in Colombo and the bus was stopped and the Sri Lankan Security Forces checked the identity cards of everyone on the bus.  Because my identity card lists my place of birth as Tellippallai, which is an LTTE stronghold, I was questioned about where I was staying and whether I had any involvement with the LTTE.  I told them that I had been living in Colombo for 29 years [sic] they allowed me to go.”

8                     In another statutory declaration, the first appellant asserted the following:

“We moved to Colombo in March, 1996 and we remained living there until 15th June, 1998.  The Army would come frequently to our home, I think they came four times during this period.  They would ask us many questions about the LTTE, and we were under suspicion for helping the LTTE as we were from the area of Veemankamam, which was known as being an LTTE area.”

9                     The Tribunal recorded the claims and evidence of involvement of the first appellant as including the following: 

·        Contact with the LTTE while working for the Thirumala Press in Chunnakam. 

·        Having his house taken over by the LTTE and residing in a compound controlled by the LTTE. 

·        Assisting the LTTE in Columbo on two occasions by travelling with LTTE members to Puttalam.

10                  The Tribunal noted that, for the purposes of the Convention, a political opinion need not be an opinion that is actually held by the refugee.  It is sufficient, for those purposes, that such an opinion is imputed to him or her by the persecutor.  However, the Tribunal did not accept as credible the appellants’ claims that they have been involved with the LTTE and that they had been imputed with a political opinion of being LTTE supporters.  Nor did the Tribunal accept as credible the appellants’ claim that upon return to Sri Lanka the LTTE would seek their assistance.

11                  The first appellant claimed that the LTTE employed the services of Thirumala Press.  The Tribunal found that the first appellant’s employment with Thirumala Press was from 1977 to 1989. The Tribunal found that any claim of harm by the Sri Lankan authorities arising from the first appellant’s employment at Thirumala Press is remote and insubstantial.  In other words, it is not a well founded fear. 

12                  The first appellant also claimed to have had his house taken over by the LTTE.  However, at the hearing before the Tribunal, it was stated on behalf of the appellants that the LTTE did not take over any of the appellants’ houses.  The Tribunal, therefore, gave such assertions no weight. 

13                  The Tribunal accepted that, for a time, the appellants resided in a compound controlled by the LTTE.  However, it also found that they were never actively involved with the LTTE.  The first appellant gave evidence that he was approached to do some bookkeeping for them but excused himself on health grounds.  The Tribunal found that this explanation was accepted by the LTTE.  There was evidence the second appellant occasionally cooked and cleaned for the LTTE.

14                  The appellants departed the north for Colombo in March 1996.  The Tribunal found that they obtained security clearances from the authorities to do so and that the fact that the appellants were able to depart from the north without difficulties suggests that, despite their residence in an LTTE controlled compound, they were of no interest to the authorities. The Tribunal considered that this was supported by independent evidence, namely, that a person who is given a security clearance to proceed to Colombo is not likely to be of interest to the security forces. 

15                  The Tribunal found that the appellants do not have a well-founded fear arising from their residence in an LTTE controlled compound.  Therefore, the Tribunal also found that the second appellant was not imputed with an LTTE profile arising from the occasional cooking and cleaning she undertook for LTTE, and that she did not have a well founded fear of harm.

16                  The Tribunal also noted the appellants’ claim that they fear harm arising from claimed assistance they gave to the LTTE in Colombo.  The Tribunal found that particular claim to be lacking in credibility for reasons that it set out.  The Tribunal concluded that the claims by the appellants that they assisted the LTTE in Colombo were not credible. It could not be satisfied that they had any contact with the LTTE in Colombo.  In the light of that finding, the Tribunal could not be satisfied that the Sri Lankan authorities had any ongoing interest in the appellants arising from that claim.

17                  Finally, the appellants also claimed that they feared harm by one of the militant Tamil groups opposed to the LTTE, namely the People’s Liberation Organisation of Tamil Eelam (“PLOTE”).  The Tribunal found that claim to lack credibility; it found that it was implausible that the PLOTE had any ongoing adverse interest in the appellants.  At the conclusion of the hearing, the first appellant also made the claim that he feared harm because of his connection with PLOTE when it was anti-government, prior to 1987.  The Tribunal did not find that claim to be credible for the reasons that it gave. 

failure to investigate further

18                  The substance of the claim pressed in the appeal is that the Tribunal erred insofar as it failed to take account of the possibility that a resident of Veemankamam was under a particular threat.  It was argued, first, that there was a possibility that persons who had been associated with the LTTE and came from a place such as Veemankamam, which was described as a “no-go area”, formed a social group. Secondly, it was argued that the Tribunal failed to make any findings on a material question of fact, namely, whether such a group could be identified as a particular social group for the purposes of the Convention.

19                  However, the only material before the Tribunal from which any such conclusion could possibly be drawn was the material to which I have referred above.  It was not suggested to the Tribunal that any finding should be made on such a question.  That was not the way in which the appellants presented their case to the Tribunal.  Rather, the thrust of the appellants’ case before the Tribunal was that they had a close association with the LTTE and, therefore, they were at risk, because of their political opinions, or their imputed political opinions. The Tribunal rejected that contention. 

20                  The Tribunal was under no obligation to inquire further into the importance or otherwise of the appellants coming from Veemankamam - see, for example, Minister for Immigration v Anthonypillai [2001] FCA 274 at [86].  I do not consider that the failure by the Tribunal to examine the possible significance of the fact that the appellants had spent some time at Veemankamam was, having regard to the claims made before the Tribunal, a failure to comply with s 430(1)(c) of the Act.  That question was not material before the Tribunal. Therefore, there was no failure on the part of the Tribunal to observe any procedure laid down by s 430 by failing to enquire further and to make a finding on that question. 

error of law

21                  I must confess that I have some difficulty with the second ground of appeal.  The fact situation that I have described above highlights the significance of the role played by the appellants in assisting the LTTE.  The appellants do not dispute the factual finding of the RRT, which accepted that they gave assistance to the LTTE in the north, but rejected their involvement in Colombo.  The notice of appeal says:

“It is true that the RRT did not accept that the applicants were mistreated in Colombo. This, however, does not imply that the applicants will not be persecuted in the future.” 

Reliance was placed on an assertion that there was evidence that even elderly people are mistreated for suspected involvement with the LTTE. 

22                  The appellants contended, first, that the Tribunal had made several findings indicating that they were involved with the LTTE in a manner different from any other Tamil person in the north of Sri Lanka. Second, the appellants contended for a broad approach by this Court, consistent with the principles enunciated in Minister for Immigration and Multicultural Affairs v Ibrahim [2000] HCA 55.  It was argued that the following :

·        doing printing work for the LTTE,

·        living in LTTE compounds and headquarters,

·        living in the LTTE stronghold Veemankamam for some time,

·        supporting the LTTE, and

·        cooking and cleaning for the LTTE

brought the appellants closer in their association with the LTTE.

23                  However, this submission appears to question the factual finding made by the Tribunal that there was, in fact, no significant association between the appellants and the LTTE.  The Tribunal had regard to all of the matters that I have just enumerated, in rejecting the appellants’ claim that they would be imputed with the LTTE’s political views, because of their connection with the LTTE. 

24                  The appellants’ representative was unable to identify any incorrect interpretation of the Convention or any incorrect application of the law to the facts as found by the Tribunal, such as to satisfy s 476(1)(e).  It was contended on behalf of the appellants that the characterisation of their involvement with the LTTE as minor was irrelevant, in the light of independent country evidence. The appellants submitted that minor connections with the LTTE would be sufficient for mistreatment in the future.  It is certainly correct to say that a finding of refugee status could be made notwithstanding the absence of persecution of an appellant in the past.  The question is whether there is a real risk of persecution upon return to Sri Lanka.  Be that as it may, the Tribunal considered the matter. It found that it was not satisfied that the appellants had a well founded fear of persecution for a Convention reason in the foreseeable future upon return to Sri Lanka. 

25                  I do not consider that either of the grounds in ss 476(1)(a) or 476(1)(e) has been established in relation to the Tribunal’s decision.  That is the conclusion to which the primary judge came.  Accordingly, in my view, the appeal should be dismissed with costs.

Associate:

Dated:              12 June 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

FINKELSTEIN J:

26                  I agree in the reasons of both Sundberg and Emmett JJ, and with the orders proposed by Emmett J.

Associate:

Dated:              12 June 2001