FEDERAL COURT OF AUSTRALIA

Visvalingam v Minister for Immigration & Multicultural Affairs

[2001] FCA 696

IMMIGRATION – Application for Refugee status – whether failure of RRT to consider all of the substantial claims – RRT correctly identified nature of Applicant’s claim – findings on credibility – RRT did not accept the applicant’s evidence – RRT’s reasons to be read beneficially – whether being a Tamil per se gives rise to a well-founded fear of persecution – whether incorrect to contend that Applicant had a well-founded fear of persecution independently of his personal claims – impact of High Court decision in Yusuf on Full Federal Court’s decision in Sellamuthu.

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

Collector of Customs v Pozzolanic (1993) 43 FCR 280 applied

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

Vichlenkova v Minister for Immigration and Multicultural Affairs [1999] 1338 referred to

Mwakaya v Minister for Immigration and Multicultural Affairs [2000] FCA 1637 referred to

Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 referred to

W168/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 538 applied

Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 dist

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

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 referred to

BALALINGAM APPAKUTTI VISVALINGAM v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 23 of 2001

CONTI J

8 JUNE 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

Application for Review

1                     The Application for Review is brought against the decision of the Refugee Review Tribunal (“RRT”) made on 27 November 2000, whereby the RRT affirmed the decision of the delegate of the Minister not to grant the Applicant a protection visa, because as in the case of the delegate, the RRT was not satisfied that the Applicant was a refugee within the Convention definition. The Applicant was both legally represented before the RRT and in the proceedings before me.

2                     The form of the Application for Review states that the Applicant was aggrieved for the reason that he was denied a protection visa. The grounds of the Further Amended Application for Review are as follows:

“1.       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 a substantial issue raised on the evidence and material before it, being whether, irrespective of the rejection of his personal claims, the applicant had a well-founded fear of persecution for reason of his race.

2.                  The person who purported to make the decision did not have jurisdiction to make the decision.

Particulars

            See particulars to ground 1 above.

3.                  The decision was not authorised by the Migration Act or the Regulations.

Particulars

                        See particulars to ground 1 above.

4.                  The Tribunal failed to observe procedures that were required by the Act to be observed in connection with the making of the decision.

Particulars

                        (a)        The Tribunal failed to make a finding on a material question of fact, being whether, if the applicant had not been subjected to harm in the past, he nevertheless had a well-founded fear of persecution for reason of his race.”

Factual background

3                     The Applicant is a Sri Lankan citizen of Tamil ethnicity who was born in Colombo in 1955. He is married with one daughter, both of whom remain resident in Sri Lanka. The Applicant has spent almost twenty years of the last twenty-one years of his life residing outside Sri Lanka. The Applicant obtained a transit visa for Australia in Colombo on 14 August 1995, to enable him to visit his sister and brother-in-law in Papua New Guinea. On his return to Sri Lanka, he entered Australia on 6 October 1995 as the holder of a three day transit visa. On 11 October 1995, he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. When the matter was before the RRT, he claimed to have a well-founded fear of persecution by the Sri Lankan Government (and its agents), on the basis of his race and imputed political opinion in support of Liberation Tigers of Tamil Eelam (LTTE). He also claimed fear of persecution by the LTTE for reasons of race.

4                     Some of the Applicant’s claims as recorded by the RRT in its Decision were initially set out in a statutory declaration made on 28 February 1996. The contents of such statutory declaration are set out in the RRT Decision and may be relevantly summarised as follows. The basis for the Applicant’s claims commence with events that occurred back in 1977, and continued through to 1995. In 1977, the Applicant asserted that both he and his father were injured by Sinhalese mobs during race riots in Colombo. The Applicant further asserted that many years later, during a visit to Sri Lanka in 1989, he was taken to a police station on suspicion of being a member of the LTTE. During the time he was detained by the Police, he claimed he was kept in a cell for four days with sixteen other persons where he was mistreated, and his life was threatened. It was not until his father-in-law persuaded a friend in the Police Force to use his influence to assist the Applicant that the Applicant was released from the police station. Following his release, the Applicant returned to Saudi Arabia, leaving his wife behind in Sri Lanka.

5                     The Applicant did not return to Sri Lanka until May 1991. He claimed that when militant groups found out that he was returning to Sri Lanka, they threatened his wife and demanded some $1.5 million rupees. He further claimed that his wife gave her jewellery to such militant groups.

6                     In May 1991, he resided in a lodge in Colombo that was raided one night by the police. All the men residing there (including the Applicant) were taken to the police station. During such time of internment, the Applicant claimed that he was interrogated as to why he had come back to Colombo. He was also accused of being a member of the LTTE. The Applicant further claimed that he was assaulted by the Police on four occasions, and was finally released after six days when his uncle paid the Police a bribe. Prior to his release, the Applicant asserted that the officer in charge took and retained his finger prints. Shortly after this event, the Applicant flew to Italy using a visa granted on 1 May 1991. The Applicant did not return to Sri Lanka until after peace talks between the Government and the LTTE commenced in early 1995.

7                     When the Applicant returned to Sri Lanka on 8 March 1995, a neighbour informed him that he witnessed the Applicant’s brother being taken by men in civilian clothes who were driving a white van, and that he had not seen the Applicant’s brother since that occasion. After the Applicant placed an advertisement in a Tamil newspaper, he claimed that the Police came to the place where he was residing wearing civilian dress, and assaulted him, thereby breaking two of his teeth. They told him to place an advertisement in a Tamil newspaper to the effect that his brother had been found. When the Applicant refused to do this, he asserted the Police took him to the Police Station and held him there for two weeks. During such time, he was again assaulted and threatened with loss of his life.

8                     The Applicant was released from the Police station after members of his family persuaded a family friend, who was a Chief Inspector of Police, to intervene on his behalf. After his release, the Chief Inspector told the Applicant that Tamil members of the Parliament were organising an investigation into missing persons, and that the Applicant would be called as a witness. The Chief Inspector then advised the Applicant to leave Colombo, and to also leave the country, because if he appeared as a witness, “they would finish me, they would try to kill all witnesses”. The Applicant left Colombo and went to Batticoloa. Upon the approval of his visa for Papua New Guinea (where his sister lived), he travelled back to Colombo, whereupon he made his way to Australia via Singapore and Papua New Guinea.

9                     In addition to the claims set out in the statutory declaration of the Applicant, the RRT recorded a further set of claims made by the Applicant when he appeared before the Tribunal. Such additional claims principally were to the effect the Applicant’s youngest brother was a high ranking officer of the LTTE, and that it was for this reason that the Applicant and his family had been targeted by the authorities. The Applicant also maintained that in January 1998, his wife disappeared following upon army activity in Batticoloa. It was claimed by the Applicant that this occurred as a result of her refusal to pay extortion demands made by the LTTE.

The rejection of the Applicant’s credit worthiness

10                  Upon the RRT’s consideration of the testimony given by the Applicant, it concluded that the claims made by the Applicant were a complete fabrication. The RRT concluded that “I find that the Applicant is not a witness of truth and I do not accept his evidence”. The RRT was additionally very critical of the Applicant for his raising of a number of claims some fifty months after the date when he lodged his protection visa application. The reasons for RRT rejecting those claims included the Applicant’s failure to provide sufficient explanation for raising at least most of the same so late. His account of other incidents was found to be inconsistent or contradictory. Furthermore, some of his claims were not coherent in content, nor did they accord with logic. The RRT noted that his demeanour, when questioned about inconsistencies in his evidence, was non-responsive and evasive. The RRT added that none of the Applicant’s claims were corroborated by independent evidence.

The RRT’s conclusions

11                  The findings of the RRT may be summarised as follows:

(i)                  The RRT rejected the Applicant’s claim that his brother was a high-ranking member of the LTTE. That was for the reason that the claim made by the Applicant in relation to this issue was raised some fifty months after his protection visa application was made. Furthermore such an assertion about his brother being a member of the LTTE was inconsistent with the Applicant’s statutory declaration provided to the Department, which merely said that the Applicant’s brother was missing. As to the Applicant’s account of himself being taken to a police station on suspicion of being a member of the LTTE, the RRT found first, that it was unlikely that the Applicant would merely have been suspected of being a member of the LTTE and secondly, in light of the number of persons who were taken to the police station on that occasion, what in truth occurred was a general round up of persons rather than an action targeted at suspected LTTE members;

(ii)                The RRT rejected the Applicant’s claim that his wife had disappeared. The RRT was critical of the failure of the Applicant to make any mention of such information while his protection visa application had not yet been determined by the Department. There was in short no substantiation for the claim regarding the disappearance of his wife. The Applicant had also failed to take any steps to find out where his wife might have been during the thirty-four months she was said to have been missing. Finally, the RRT would not accept that the Applicant’s brother-in-law failed to inform the Applicant of his wife’s disappearance some twenty-two months after the time she was said to have gone missing. The foregoing claims were in the RRT’s view a fabrication designed to bolster the Applicant’s case in support of his protection visa application;

(iii)               The RRT rejected also the Applicant’s claim that his brother was taken away by men dressed in civilian clothes in October 1994. The Applicant failed to produce letters, which he said he possessed, to the effect that the police “were coming all the time to search him”;

(iv)              The RRT did not accept the Applicant’s story that in May or June 1991, he was arrested by the police, detained for six days and assaulted during that time. In the light of what was said by the Applicant in his statutory declaration, to the effect that this occurred by reason of him being suspected of being a member of the LTTE, it was not acceptable to the RRT that the Applicant was picked-up by the police merely on suspicion, if, as he claimed at the hearing, his brother was a famous commander of the LTTE. It would also have been unlikely in the RRT’s view that the Applicant would have been released after four days;

(v)                The RRT did not accept that the Applicant failed during his four years residence to apply for refugee status in Italy if his claims were true, and if he was genuinely in fear of persecution in Sri Lanka. The Applicant remained in Italy for four years at continual risk of deportation as an illegal entrant, and such behaviour did not accord with a genuine fear of persecution in Sri Lanka. If his claims were true, he would not have voluntarily returned to Sri Lanka in March 1995. His return to Sri Lanka was an act inconsistent with a genuine fear of persecution in Sri Lanka. The RRT added that the Applicant’s regular and frequent visits to Sri Lanka from Saudi Arabia were also inconsistent with a genuine fear of persecution;

(vi)              The RRT rejected the Applicant’s claim that he was arrested in March 1995, and detained for two weeks because he had placed an advertisement looking for his brother. The RRT had primarily rejected the claim that his brother had been taken away by persons in a white van in the first place. Other reasons for rejection were that if the Applicant’s brother had been killed as the Applicant had claimed, it made no sense for the same police to have allowed the Applicant to be released on the request of an uninvolved Chief Inspector of Police, nor to have tried to pressure him to advertise that his brother had returned. Furthermore, the Applicant’s account relating to the intervention of the Chief Inspector of Police was confusing and contradictory. The claim that the officer in charge, before releasing the Applicant, took his finger prints was illogical if, as the Applicant claimed, the officer in charge released him, not because he was no longer wanted, but because his friend, the Chief Inspector, had asked him to do so; and

(vii)             In summary, the Applicant has never experienced persecution for a Convention reason in Sri Lanka. He is of no interest to the authorities nor the LTTE. He does not have a well-founded fear of persecution for a Convention reason if he were to return to Sri Lanka.

Alleged failure to address substantial claim raised

12                  The Applicant claimed that the RRT failed to address a substantial issue raised on the evidence and material before it, namely, whether irrespective of the rejection of the Applicant’s personal claims, the Applicant had a well founded fear of persecution for reason of his race. A failure to consider this issue was contended to involve an error on the RRT’s part in the interpretation of law s 476(1)(e), and a failure to observe a procedure required by s 430(1)(c) of the Act (s 476(1)(a)), and a decision which was not authorised by the Act (s 476(1)(c)). It was also submitted that the failure to consider a substantive issue meant that the RRT did not have jurisdiction to make such a decision (s 476(1)(b)).

13                  The Applicant submitted that his case is supported by the decision of the Full Federal Court in Sellamuthu v Minister of Immigration and Multicultural Affairs (1999) 90 FCR 287. In that case, the Appellantclaimed that he was entitled to a protection visa. The RRT found that he was not a credible witness but in fact an untruthful person. As a consequence of the RRT’s rejection of the Appellant’s evidence, it concluded that he did not have a well-founded fear of persecution. The Full Court held that the RRT failed to consider whether hehad a subjective fear of persecution by reason of his ethnicity. Such a failure, it could be said, arose out of an erroneous interpretation of the nature of the appellant’s case. The Court concluded that the failure of the RRT to consider such claims constituted a contravention of s 430(1)(c) of the Act, and that such failure was reviewable under s 476(1)(a) of the Act. Wilcox and Madgwick JJ, in their reasons for judgment, added that the decision was also reviewable on the grounds set out in ss 476(1)(c) and (e) of the Act.

14                  The respondent submitted that Sellamuthu was distinguishable from the present case. Unlike Sellamuthu, the RRT in the present matter did not misinterpret the applicant’s case. This is manifest from the RRT’s identification of the Applicant’s case as indeed involving alleged fear of persecution from the authorities on the basis of race and imputed political opinion, and alleged fear of persecution from the LTTE for reasons of race. The Respondent also relied on the findings of the RRT that first, the Applicant did not have a genuine fear of persecution, secondly, he never experienced persecution for a Convention reason, and finally, he was of no interest to the Sri Lankan authorities nor the LTTE.

15                  Since I reserved judgment in this matter, the High Court delivered its judgment in Minister of Immigration and Multicultural Affairs v Yusuf [2001] HCA 30, where the majority held that the absence of a finding of the RRT of what a Full Court below had found to be a material fact, contrary to the decision of the RRT, did not attract the operation of s 476(1)(a). Consequently, in so far as the Full Court’s view expressed in Sellamuthu held that a failure of the RRT to make a finding upon a material question of fact gives rise to an error of law within s 476(1)(a), the Applicant here can no longer rely, as it did, upon Sellamuthu. In any event, the Applicant’s purported reliance upon s 476(1)(a) should fail, because as will shortly be demonstrated, I think that the RRT did make findings below in relation to what the Applicant contended before me constituted material facts.

16                  The Applicant also made submissions, somewhat faintly, to the effect that the RRT committed reviewable errors within ss 476(1)(b), 476(1)(c) and 476(1)(e) of the Act. I am conscious of what was said by the High Court in Yusuf in relation to the scope of review of a RRT decision for so-called “jurisdictional error” which may be attracted by those statutory provisions: see in particular the joint judgment of McHugh, Gummow and Hayne JJ in Yusuf (supra) at [82-84], with which Gleeson CJ agreed. It suffices to say that nothing to which the Applicant’s submissions point demonstrates an absence of jurisdiction, an absence of statutory authority, an incorrect interpretation of applicable law, or an incorrect application of the law to the facts as found by the RRT, in the decision of the RRT below. My reasons for such further conclusion will appear generally from my findings and conclusions which follow.

There was no failure to address the essence of the Applicant’s case

17                  In my view, the appropriate starting point in considering the RRT decision the subject of review is to have regard to what the RRT perceived the Applicant’s case to comprise. The RRT stated that the Applicant’s case was that he had a genuine fear of persecution by Sri Lankan authorities, both on the basis of his Tamil race, and of the political opinion in support of the LTTE imputed to him, albeit wrongly, by the Sri Lankan authorities. His claims were also identified by the RRT as including a genuine fear of persecution by the LTTE on the basis of his race. It was on these bases that the RRT considered the Applicant’s claim for refugee status, and upon which it reached its ultimate decision that the Applicant did not have a well-founded fear of persecution. The RRT also concluded that the Applicant had never experienced persecution for a Convention reason nor was he of any relevant interest to the Sri Lankan authorities, nor to the LTTE. Such decision of the RRT was referrable to the findings referred to in [11] above.

18                  A key feature of the RRT’s decision included its rejection of the evidence of the Applicant virtually in its entirety and its finding that the Applicant was not a witness of truth. The Court has on a number of occasions indicated that Tribunals like the RRT should exercise some caution when assessing the credibility of an applicant: see for instance W168/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 538 at [9-12] per Lee J. That being said, it is of course for the RRT and not for the Federal Court, to assess the credibility of an applicant’s claims: see for instance Re Minister for Immigration and Multicultural Affairs: ex parte Durairajasingham (2000) 168 ALR 407at 423 per McHugh J and Mwakaya v Minister for Immigration and Multicultural Affairs [2000] FCA 1637 at [11] per Spender J with whom Lee and Carr JJ agreed. The rejection of an applicant’s credibility, however, would not of itself prevent an applicant from successfully obtaining judicial review of a decision of the RRT. Perhaps the clearest example of that approach can be found in Sellamuthu. Although at first glance there may appear to be some similarity between the present case and Sellamuthu, Sellamuthu involved distinguishable circumstances.

19                  The Full Court in Sellamuthu emphasised that the circumstances of that case were somewhat unique. At 294, Wilcox and Madgwick JJ said:

“We should emphasise that our conclusions depend on the circumstances of this case. In many other cases the sole substantial basis for judging whether a person falls within the convention criteria for a “refugee” will be the information as to his/her supposed history and background furnished by an applicant. Upon legally proper rejection of the credibility of an applicant in such a case, there will be no basis for requiring that the RRT do more than forthwith reject the claim for refugee status.”

The RRT’s rejection of the testimony of the Applicant in the present case, unlike the situation in Sellamuthu, occurred in a context where the RRT had correctly interpreted the nature of the Applicant’s case. The basis for determining whether the claims of the Applicant were such as to fall within the refugee definition required the RRT to consider the information provided about his experiences in Sri Lanka. In its consideration of the Applicant’s claims, the RRT was of course entitled to assess the Applicant’s credibility inherent or involved in the making of such claims. If the Applicant’s claims contained inconsistencies or inherent implausibilities, the RRT was plainly entitled to reject his application to the RRT: see for instance Vichlenkova v Minister for Immigration and Multicultural Affairs [1999] FCA 1338 at [3]. The RRT considered the Applicant’s claims and rejected them in their entirety. It did not misconstrue what was the nature of those claims. The RRT addressed those claims, and on the information placed before it, was clearly entitled to come to the conclusion that the Applicant was not a refugee within the Convention definition.

The RRT addressed the issue of whether the Applicant had a well-founded fear of persecution for reason of his race

20                  Another distinguishing feature about the circumstances of the present case is that the RRT found that the Applicant did not have a well-founded fear of persecution for a Convention reason (ie race). In contrast, the RRT in Sellamuthu failed to do so. The Applicant here contended that the only finding made by the RRT was to the effect that the Applicant did not have a subjective fear of persecution related solely to his failure to apply for refugee status in Italy and his repeated return to Sri Lanka in the 1990s, and that such findings related only to the pre-March 1995 period, and no finding as to a lack of subjective fear of persecution was made by the RRT as at the time of the RRT decision. I think that such findings represented a critical part of the chain of analysis that led the RRT to the ultimate conclusion adverse to the Applicant. For the RRT to have found the Applicant’s accounts of his life’s experiences up to that point in time to be so discredited plainly entitled the RRT to come to the following conclusion as at the date refugee status was to be determined (ie when the RRT decision was made):

“I am satisfied that the Applicant is of no interest to the Sri Lankan authorities or the LTTE and that he does not have a well-founded fear of persecution for a Convention reason if he were to return to Sri Lanka”

21                  In my opinion, no error of law was committed on the part of the RRT in the present case. While it may be said that the RRT’s conclusion in [19] above could have included “for reasons of race” instead of “for a convention reason”, it must be emphasised that when reviewing administrative decision-making, the RRT’s reasons should normally be read beneficially. The reasons of an administrative decision-maker are designed and intended to inform, and are not to be scrutinised “minutely and finely with an eye keenly attuned to the perception of error”: Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and W168/00A (supra) at [31] per Carr J. Having regard to the factual contexts in which the RRT made its decision, and its conclusions referred to in [11] above, it necessarily followed that the RRT was not satisfied that there was any real risk that either the Sri Lankan authorities or the LTTE would persecute the Applicant on his return to his country for reasons of his race: see W168/00A (supra) at [14] per Lee J. Furthermore, I do not read the RRT’s reasons for decision as involving a failure to address the Applicant’s claim of a well-founded fear of persecution simply because he is a Tamil. The RRT was plainly aware of the Applicant’s Tamil ethnicity throughout the course of consideration of claims, and did not attempt to divorce his ethnicity from what I might describe as his personal claims. Consideration of fear of persecution for reason of race inherently takes place in the context of an applicant’s personal circumstances. It is incorrect to postulate that the RRT ought to have considered might be described as a form of ‘globalised’ question, namely, whether being a Tamil per se gives rise to a well-founded fear. It was incorrect for the Applicant to contend that the RRT did not assess whether the Applicant had a well-founded fear of persecution independently of his so-called personal claims: see Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 415 per Gaudron J.

22                  Since the RRT did not fail to identify the nature of the Applicant’s claim, nor to address the issue as to whether the Applicant had a well-founded fear of persecution for reasons of his race, there is no reviewable error on the grounds provided for in s476(1)(b), s 476(1)(c) and s 476(1)(e) of the Act, and as I have indicated in [15] above, there can be no reviewable error under s 476(1)(a) of the Act. Thus even if Sellamuthu still represented the correct position at law in relation to s 476(1)(a), notwithstanding the majority reasoning in the High Court in Yusuf, the Applicant’s case would have nevertheless failed for the same reasons that I rejected his other claims purportedly based upon ss 476(1)(b), 476(1)(c) and 476(1)(e).

23                  I would accordingly dismiss the Application and order that the Applicant pay the costs of the Respondent.

Associate:

Dated:              8 June 2001