FEDERAL COURT OF AUSTRALIA

Nagappan v Minister for Immigration and Multicultural Affairs

[2001] FCA 863

MIGRATION – protection visa – review of decision of Refugee Review Tribunal – whether Tribunal asked correct question – whether no evidence of fact that applicant had lived in Colombo

Migration Act 1958 (Cth) s 476(1)(b)(c)(e)(g) and (4)(b)

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at [75], [78], [82] and [84] applied

Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744 at [35] applied

MAHADEVAN NAGAPPAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 2 OF 2001

HEEREY J

13 JULY 2001

MELBOURNE (HEARD IN PERTH)

THE COURT ORDERS THAT:

1.         The application is allowed.

2.         The decision of the Refugee Review Tribunal dated 12 December 2000 is set aside and the application referred to the Tribunal differently constituted for rehearing according to law.

3.         The respondent pay the applicant’s costs, including reserved costs.

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

REASONS FOR JUDGMENT

1                     The applicant seeks review under Pt 8 of the Migration Act 1958 (Cth) of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant the applicant a protection visa.

2                     The applicant is a male citizen of Sri Lanka of Tamil ethnicity.  He arrived in Australia on 16 February 2000 and lodged an application for a protection visa on 1 June 2000.  The application was rejected on 18 August 2000 and the decision of the Tribunal affirming that refusal was given on 12 December 2000. 

3                     The claims made by the applicant can be considered by reference to the decision of the Tribunal.  After referring to the legislation, the terms of the Refugees Convention and judicial authorities as to the meaning of the definition of “refugee”, the Tribunal summarised under the heading “Evidence” the statements made by the applicant at his unauthorised arrivals interview on 25 February 2000, in a statement of 1 June 2000 and in submissions on his behalf on 1 November 2000.  The Tribunal referred to a number of documents presented on his behalf including a submission by Amnesty International dated 2 November 2000.  The Tribunal then referred to the evidence given at the hearing on 2 November 2000.  That summary of the hearing records a number of instances in which the Tribunal put to the applicant that he had given inconsistent versions of various events.  Under the heading “Independent Information” the Tribunal summarised the history of Tamil separatism in Sri Lanka and associated violence.  It referred to the position in Colombo, particularly the position of Tamils, as disclosed in country information from the Department of Foreign Affairs and Trade.  There was also discussion about conditions in Jaffna.  Under the heading “Findings and Reasons” and the sub-heading “General” the Tribunal stated:

“The applicant claims that he has a well-founded fear of persecution by reason of his imputed political opinion, because the army and LTTE want to kill him and his race, because he is a Tamil.  He claims a real chance of persecution if he returns to Bangladesh (sic) because of his imputed political opinion, his race and as a returned asylum seeker.  In assessing the applicant’s Convention claims, I am required to determine whether he has a well-founded fear, and if so, whether what he fears amounts to persecution for a Convention reason.”

4                     Then under the sub-heading “Credibility” the Tribunal referred to a number of authorities and made the following observations:

 “The applicant’s evidence in relation to almost all aspects of his claim was vague, unconvincing, contains significant internal inconsistencies and was inconsistent with the independent information.  I am unable to accept that he was truthful in giving evidence to the Tribunal and it was clear that the applicant abrogated significant parts of his evidence.  The lack of credibility of the applicant’s evidence, as well as my consideration of the independent evidence set out above, leads me to conclude that I am unable to be satisfied that the applicant has a well-founded fear of persecution if he returns to Sri Lanka.”

5                     Under the sub-heading “Nationality and Religion” the Tribunal found that the applicant is a national of Sri Lanka and of Tamil ethnicity and comes from the Trincomalee district.  Under the sub-heading “Claims” the Tribunal dealt with a number of events which the applicant claimed had happened.  I shall briefly summarise these, using the same sub sub-headings as the Tribunal. 

Witness to murder of 18 August 1997

6                     The Tribunal accepted that the applicant was a witness to the murder of a fisherman at his village by a soldier of the Sri Lankan army in August 1997.  The Tribunal also accepted that the applicant and other villagers were involved in a protest in regards to the shooting and that the applicant and other villagers were witnesses at the resulting murder trial in Colombo which was concluded in September 1999.

Protest of 18 August 1997

7                     The Tribunal was unable to accept that the applicant was an instigator and leader of the protest.  The Tribunal thought the applicant’s evidence contradictory, inconsistent and unconvincing.  Nor did the Tribunal think that the applicant was singled out and threatened by an army officer as the person who started the protest.  The Tribunal believed that this evidence was a fabrication to enhance the applicant’s claims.

Witness at murder trial from 1998 to 1999

8                     The Tribunal accepted that the applicant was a witness and travelled to the High Court in Colombo in the company of police on eleven or twelve occasions.  The Tribunal did not accept that the accused threatened the applicant outside the court, telling him he would be shot if he gave evidence.  The Tribunal referred to what it said were a number of inconsistencies.  For example, on one occasion the applicant claimed that the accused soldier threatened him individually, on another occasion he said that the threat was made to the applicant and the other witnesses.

Loss of engine in October 1998

9                     The applicant claimed that he helped the LTTE, sometimes transporting oil and kerosene out to sea.  This became difficult because although the LTTE controlled the sea the police and army controlled the shore.  After a time the applicant refused to help the LTTE and in October 1998 they came and took his engine while he was at sea.  He got to shore and the LTTE only gave him his engine back upon his agreeing to pay 1000 rupees every month, which he did for some four months.  The Tribunal again found what it considered inconsistencies in various versions.  The Tribunal was unable to be satisfied that the taking of the engine and ransoming happened at all.  The Tribunal believed that the applicant fabricated this evidence.

Arrest, detention, mistreatment and release by the army in October 1998

10                  The applicant claimed that the army came to know about the engine and his contact with the LTTE, caught him, detained him for two days and beat him.  In various statements he alleged they broke his arm, his collar bone or his shoulder.  In his submissions of 2 November 2000 the additional claim of torture was made; he claimed that he was stripped naked, pliers were applied to his penis and grease forced into his anus.  The Tribunal put to the applicant that the claims of torture were in exactly the same terms as another Sri Lankan applicant.  The applicant claimed that his Hindu religion precluded him from talking of such things to females and that at every stage of the process he dealt with females.  He said that the other applicant must have overheard his decision with Amnesty International when he made these additional claims.  As a result of this and other inconsistencies the Tribunal was unable to establish the relevant facts of this claim and was not satisfied it happened at all. 

Treasurer of the fishermen’s association in 1999

11                  In 1999 the applicant claimed he became treasurer of the local fishermen’s association and the LTTE demanded additional money from the applicant, over and above the thousand rupees a month demanded from everyone who owned a boat.  The LTTE threatened to kidnap him or his son. At one stage he said they kidnapped his son about ten days before he left Trincomalee and he did not know what had become of him.  He later said that they only threatened to take his son.  In connection with this extortion the applicant also claimed that the army threatened to kill him for his contact with the LTTE and arrested and assaulted him on three occasions, in April, September and October 1999.  The Tribunal found inconsistencies and was unable to accept that the extortion or the army mistreatment happened at all.

Departure from Trincomalee and Colombo

12                  The applicant provided several different accounts of leaving his local village and Sri Lanka.  He variously gave dates of leaving Sri Lanka on 5 November 1999 and 3 December 1999.  The Tribunal found itself unable to establish the facts.  It was not satisfied that the applicant had to flee the army in Trincomalee or that he had to bribe his way through Colombo airport.

13                  The reasons concluded as follows:

“Return to Sri Lanka

131.     The applicant claims he cannot return to Sri Lanka because he is wanted by the authorities, he left Sri Lanka illegally through bribes, that he is a unsuccessful asylum seeker, he has no passport and he is a Tamil.  He will face a real chance of persecution for these reasons.  With respect to the applicant’s claims that he is wanted by the authorities and that he left Sri Lanka illegally, I am satisfied that the claims have no veracity, for the reasons given above.

132.  With respect to the claim of being a returned unsuccessful asylum seeker without a passport, I note the documentary evidence provided by the applicant in regards to such people.  I also note the independent information above at paragraphs 86 and 90.  However, in contrast to that information, the applicant has a NIC and a Registration Card, and therefore would not have problems establishing his bone fides.  He travelled to and from Colombo on numerous occasions throughout 1998 and 1999 without difficulty.  He travelled to India and returned without difficulty in 1996.  I am satisfied that if the applicant was returned to Colombo he would not have problems establishing his bone fides.

133.  With respect to being a Tamil, the applicant does not belong in the ‘high risk profile’ group of young Tamils in the 16 to 25 year age range.  He is a mature man of 40 years who has travelled extensively between his home in Trincomalee and Colombo with legal and legitimate identity documents.  He has contacts and has lived in Colombo on previous occasions.  If the applicant was to be picked up at a check point or in round ups he would have no problems establishing his bona fides.  I am satisfied that the applicant faces only a remote possibility of persecution if he returns to Sri Lanka in the foreseeable future.

Summary

134.  I am satisfied that the applicant is a Sri Lankan Tamil from Trincomalee.  I am satisfied that he is a Hindu.  I am not satisfied he is a Christian.  I am unable to make a finding whether the applicant is a fisherman or a businessman.  I am satisfied that the applicant was a witness to a murder in Thirukkadalur on 18 August 1997 and subsequent murder trial of the soldier in 1998 and 1999 in the High Court in Colombo, attending the trial as a witness 11 or 12 times.  I am not satisfied that the applicant was threatened, whether by the army on 19 August 1997 or by the soldier in September 1999.  I am not satisfied that the applicant had his engine stolen in October 1998 by the LTTE.  I am not satisfied that the army arrested, detained him for 2 days, beat or tortured him as a result of the incident, or that the army arrested, detained and beat him on three subsequent occasions.  I am not satisfied that the LTTE extorted money from the applicant when treasurer of the local fisherman’s association either in April or September or at any time in 1999.  I am not satisfied that the applicant had to flee Trincomalee because he was wanted by the army in October or November 1999.  I am satisfied that the applicant departed Sri Lanka illegally on a passport in his own name, which he subsequently disposed of.  I am not satisfied that the applicant has a well founded fear of persecution because of his imputed political opinion or his race.

135.     I am satisfied that the applicant can return to Sri Lanka without any detriment, regardless he has no passport.  He has a NIC and a Registration Card by which he can establish his bone fides, and he is not wanted by the authorities.  I am satisfied that the applicant does not face a real chance of persecution in the foreseeable future by reason of his imputed political opinion, his race, or as an [sic] returned unsuccessful asylum seeker.”

14                  The Tribunal concluded that having considered the evidence as a whole it was not satisfied that the applicant was a person to whom Australia had protection obligations under the Convention and thus did not satisfy the criteria in s 36(2) of the Act.

Arguments on review

15                  The first ground of review was that the Tribunal erred in law in applying the test as to whether the applicant had a well-founded fear of persecution if returned to Sri Lanka, in that the Tribunal was required, but failed, to consider whether the applicant, in the foreseeable future, would be at risk of persecution in his home village of Thirukkadalu in the District of Trincomalee and, if so, whether he could reasonably relocate elsewhere in Sri Lanka. 

16                  As particulars of that ground it was said that notwithstanding that the Tribunal disbelieved the applicant in relation to the past persecution that he alleged he had suffered at the hands of the Sri Lankan authorities and the LTTE which caused him to flee his village and Sri Lanka, the Tribunal was still required to determine the applicant’s claim based on the facts accepted by the Tribunal, namely that the applicant was a Tamil from the District of Trincomalee and was accordingly from the north and east of Sri Lanka.  The Tribunal referred to and reportedly accepted information contained in a report by the Department of Foreign Affairs and Trade that Tamils from the north and east of Sri Lanka had a high risk of persecution.  Further, the Tribunal failed to consider the risk of persecution of the applicant by the Sri Lankan authorities in his home village or district.  Rather the Tribunal apparently only considered the risk to the applicant of persecution by the Sri Lankan authorities in Colombo and concluded the applicant was not at risk.  Also, the Tribunal did not consider whether it was reasonable for the applicant to locate to Colombo, but only whether the applicant had a well-founded fear of persecution in Colombo. 

17                  The second ground was that the Tribunal did not have jurisdiction to make the decision or the decision was not authorised by the Act in that the Tribunal failed to ask itself and determine the right question in that it failed to address the question as to whether the applicant in the foreseeable future would be at risk of persecution in his home village if he returned to Sri Lanka and if so, whether he could reasonably relocate elsewhere in Sri Lanka.  The particulars under the first ground were repeated.  Counsel referred to Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 and in particular at [75], [78] and [84]. 

18                  These grounds can conveniently be dealt with together.  I am satisfied that they are made out. 

19                  While it is true that the Tribunal did refer to the applicant’s Tamil ethnicity as an issue, which would have been relevant to a fear on the Convention ground of race, the Tribunal (a) does not deal with the case of a man who had lived in a village near Trincomalee all his life and thus would be known to the LTTE and the authorities in that area, and (b) deals with the case on the basis that he had lived in Colombo, had contacts there and could easily live there (see par 133).  There was no basis in the evidence for that latter conclusion.

20                  Counsel for the Minister argued that pars 131 to 133 were simply referring to the difficulty that the applicant might have on his return to Sri Lanka in transiting through Colombo.  I cannot accept this argument.  In the light of the heading of pars 131 to 133 and the overall structure of the reasons this part is plainly concerned with the ultimate Convention issue of the fear of the applicant as to what will happen on his return to his country of nationality.

21                  The Tribunal has identified a wrong issue, asked a wrong question and relied on irrelevant – or rather non-existent – material so as to make an error of law in the exercise of its power:  Yusuf at [82].  Put another way, the failure to take account of the fact (manifest from the material before the Tribunal, and not just from the affidavit in the present review referred to below) that the applicant had lived near Trincomalee and not in Colombo was a failure to take into account relevant considerations:  Yusuf at [75]. 

22                  Thirdly, the applicant relied on the no evidence ground (s 476(1)(g) and (4)(b)).  It was said that a number of the alleged inconsistencies relied on by the Tribunal did not, on a proper analysis of the material, in truth exist.  However, I am not persuaded that this conclusion, even if valid, showed any more than factual error.

23                  The same conclusion follows as to the fourth ground which concerned the construction the Tribunal put on a letter relied on by the applicant as corroboration.

24                  But the fifth ground, another no evidence ground, has more substance.  It was submitted that there was no evidence or other material to support the Tribunal’s finding that the applicant had lived in Colombo on previous occasions.  The applicant swore an affidavit which included the following:

“I have had brief visits to Colombo both when passing through Colombo to travel to India in 1996 and to Australia in 1999 and when attending court in Colombo under police guard as a witness at the murder trial in 1998 and 1999, however I have never lived in Colombo.  Prior to coming to Australia, I have throughout my life lived in my home village of Thirukadalur in the District of Trincomalee.”

This evidence was not challenged.

25                  Recently the Full Court in Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744 at [35] has identified the steps required to come within s 476(1)(g) and (4)(b):

“–        A relevant particular fact first must be identified.

  –        Then it is necessary to determine whether there was any evidence before the Tribunal to justify a finding of that fact.  If there was such evidence, the ground cannot be made out.

  –        If there was no such evidence, it is next necessary to apply the second limb of (4)(b).  If there is no evidence, on review, to show that the fact did not exist, the ground cannot be made out.

  –        If there is evidence, on review, to show that the fact did not exist, it is then necessary to apply the first limb of (4)(b).  That requires an analysis of the Tribunal’s reasoning to determine whether its decision was based on that fact.”

26                  Here the particular fact – that the applicant has lived in Colombo – is identified.  Plainly there was no evidence of that fact.  The applicant’s affidavit shows that the fact did not exist.

27                  Finally, I am satisfied that the Tribunal’s decision was, in the relevant sense, based on that fact.  The fact did not form part of a chain of reasoning parallel to and independent of other chains which supported the decision.  The Tribunal referred to and relied on country information which stated that Tamils who resided in the North and East were at high risk.  Part of the Tribunal’s reasoning is, in essence, that although the applicant is a Tamil, he can live without fear of persecution in Colombo because he has lived there before.

28                  The application will be allowed.  The decision of the Tribunal dated 12 December 2000 is set aside and the application referred to the Tribunal differently constituted for rehearing according to law.  There will be an order that the respondent pay the applicant’s costs, including reserved costs.

Associate:

Dated:              13 July 2001