FEDERAL COURT OF AUSTRALIA

Anavaratham v Minister for Immigration & Multicultural Affairs [2001] FCA 903

MIGRATION - application for protection visa - applicant a Sri Lankan national - whether effective protection available in a third country, India - effect of Tribunal’s failure to refer to Art. 33 of Refugees Convention - whether Tribunal erred in failing to note that India not a signatory to Convention - whether “no evidence” in the sense required by s 176(1)(g) of Migration Act to justify finding that effective protection available in India - finding, in the alternative, that applicant did not have a well-founded fear of persecution for a Convention reason in the event of return to Sri Lanka - application of “real chance” test - whether “no evidence” to justify that finding so as to make s 176(1)(g) available.

Migration Act 1958,  ss 36(2), 430(1)(b)

Migration Reform Act 1992

Convention relating to the Status of Refugees 1951 Arts. 1A(2), 1E, 33 and 33(1)

Refugees Protocol Art. 1A(2)

Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559

Minister for Immigration and Multicultural Affairs v Gnanapiragasam (unreported, 25 September 1998)

Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543

Rajendran v Minister for Immigration and Multicultural Affairs (unreported, 4 May 1998)

Rajendram v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 526

W228 v Minister for Immigration and Multicultural Affairs [2001] FCA 860

Minister for Immigration and Multicultural Affairs v Al-Sallal (1999) 94 FCR 549

Pei Lan He v Minister for Immigration and Multicultural Affairs [2001] FCA 446

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 235

Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220

Re Minister for Immigration and Multicultural Affairs, Ex parte Durairajasingham (2000) 168 ALR 407

VISVANATHAN ANAVARATHAM  v  MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V992 of 2000

RYAN J

17 JULY 2001

MELBOURNE

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the respondent’s costs of the application, such 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                     This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”) dated 2 November 2000 affirming a decision of a delegate of the respondent Minister refusing the applicant a protection visa.  The applicant is a Tamil of Sri Lankan nationality and a Hindu by religion.  He is now 39 years of age.  He was born in Colombo and educated in that city, after which he followed a number of managerial occupations before becoming proprietor of a supermarket company.  He was married in 1992 and his wife and daughter and parents now reside in India.  His wife is an Indian citizen and his father was born in that country but became a Sri Lankan citizen in 1977. 

2                     Before the Tribunal, the applicant claimed to have had close associations through his mother with the Tamil-dominated northern region of Sri Lanka and he and his parents often visited Jaffna until 1991.  According to the applicant, he had been actively involved in Tamil politics from about 1979 and was a member of a party designated by the applicant as “the TULF”, “when Mr Amirthalingam played the key role in the party.”  It appears that the applicant’s membership of the TULF continued until the riots in 1983.  Even after that time, he remained sympathetic to the Tamil cause and continued to collect money and materials for the support of Tamil refugees.  The Tribunal, in its reasons for decision, gave this summary of harassment which the applicant claimed to have suffered between July 1983 and January 1996;

“The Applicant claimed that in July 1983 his office and the family home were attacked during the communal disturbances.  He and family members were attacked by Sinhalese thugs and they had to flee and live in a refugee camp. They stayed there for ten days.  Because it was feared the situation would worsen they then went to India.  He returned to Colombo after a month to manage his father’s business.  His parents stayed in India until 1987.  He used to visit them every three or four months.  He had power of attorney to conduct the business which his father eventually had restructured and given a new name in 1993. 

The Applicant stated that he married an Indian citizen in August 1992 and they lived in Colombo with his parents.  Neither he nor his father had any permanent rights of residency in India.  His father had taken on Sri Lankan citizenship and he could not access Indian citizenship through his wife.  They had to renew their permits every three months. 

He stated that the area in which the business operated was one dominated by Tamils.  Because of the great needs of Tamils in the north, Tamil businessmen collected clothes and other items to send north.  On many occasions he was given the responsibility to organise the collection.  This meant he was suspected by Sinhalese of giving aid to the LTTE.  The local Sinhalese traders did not like the idea of collections being made for Tamils.  They had petitioned the authorities to check transport lorries very thoroughly.  They also were quick to blame Tamils for any problems.

The Applicant claimed that his cousin was an employee of the Central Bank of Ceylon which was bombed on 31 January 1996.  She joined others in fleeing by a staircase from the building.  The government accused the LTTE of the bombing.  In August 1996 his cousin was taken into police custody for questioning about the incident.  He went to search for her and he too was harassed and questioned by police officers.  Eventually he was able to bail out his cousin and she went to live in his house.  That meant he too came under suspicion and police often visited his house to interrogate him and his cousin.  He was asked why the interview would be delayed until August, some six months after the incident. He said that inquiries into it had taken some time.  He told the Tribunal his cousin was able to resume work and she was still living in his house in Colombo.”

3                     The Tribunal then referred to some business difficulties which the applicant had experienced over the importation of a consignment of potatoes from the United Kingdom which became spoiled and had to be dumped.  It seems that the applicant claimed that those troubles became related to his perceived Tamil sympathies.  The Tribunal described his account of that relationship in these terms;

“He said that trouble was caused for him by a fellow Tamil but one whom he had offended. A Mr. P. Mani was annoyed at him because he would not support the party in government. Mr. Mani therefore maliciously informed his UK exporters that the Applicant could not pay his bills because he was sending money to the LTTE.  The exporter got scared and demanded that the Applicant meet his financial obligation.  The Applicant said that it was well known that the centre for LTTE overseas activities was the UK and that was why the exporter was willing to act on rumour.  Many in Britain were suspicious of Tamils and his money changers in Sri Lanka and in Britain were both Tamils.

When he couldn’t pay, a suit was filed against him to reclaim 70,000 English pounds. The police came to question him and he then received a summons to go to the section which handled fraud.   He said this was unusual and that it should have been handled via ordinary police processes.  It convinced him that he was going to be suspected of helping the LTTE.

The Tribunal asked the Applicant about whether he sought legal advice and he responded that he did not.  He was asked whether it would not have been wiser to do so and responded that was not the way things were done in Sri Lanka.  He also said it would not have helped him.  In fact it could make his case more difficult if a lawyer was involved.  He knew of other Tamil businessmen who had been charged with fraud and had been badly treated while in custody.  The Applicant told the Tribunal that the police had not questioned his father, who was a partner in the business, because his father was very ill.

The Tribunal asked the Applicant why he did not go to the UK and try to sort out the problems there.  He had a visa to make that trip. He responded that he had visited the UK in 1997 and had talked to his money agent there.  The latter was a Jaffna Tamil.  After the trouble began he had talked to the exporter who did not believe him so there was no point in going to the UK again.  He agreed that the case against him mounted by the exporter was a civil case.  However, the matter of paying less than the full customs amount would be handled as a criminal matter and if he was suspected of helping the LTTE then he could be charged under the emergency regulations.”

4                     Reference was then made by the Tribunal to the applicant’s explanation for the lack of any documents in Australia to support his account of his business difficulties, and the Tribunal concluded its recital of the applicant’s claims with this paragraph;

“The Applicant told the Tribunal that he and his family all travelled to India on the same day. They had just closed up the business.  He had employed three workers but had to sack them.   He could not return to Sri Lanka without being investigated and he feared this would lead to persecution of him by the authorities.  He was very unhappy about not being with his family and would never have sought refugee status in Australia had it not been that he faced a real chance of persecution.”

5                     Under the heading “Findings and Reasons”, the Tribunal considered, first, whether the applicant, whom it found to be a Sri Lankan national, had claims to effective protection in a third country, India.  In that respect, it observed;

“The Tribunal has taken into account that he himself was born in Colombo but that strong Indian links remain, as indicated by his wife’s Indian nationality and the fact that she, his father and his child have been able to return to and live in India in recent times.  He himself has visited India on many occasions, particularly during the 1983-1987 period, a period during which the Indian government offered his family protection.   The Tribunal accepts the Applicant’s claim that he had no right of permanent residency in India and that he and his father, who had given up his Indian citizenship, had to renew their permits every three months. However, permanency is not required in an issue of effective protection.  What is necessary is that a person should not be at risk of refoulement to a country where they have a well-founded fear of persecution. (Thiyagarajah, Rajendran v MIMA and MIMA v Gnanapiragasam)”

6                     The Tribunal then related those general principles to the circumstances of the applicant, saying, at p 9 of its decision;

“The Applicant has claimed that he fears being deported from India to Sri Lanka.  He told the Tribunal that he became anxious about his safety in India when he was questioned about having LTTE links.  The Tribunal is not satisfied that the Applicant was at risk of deportation back to Sri Lanka.  It has taken into consideration India’s general record on accepting Tamils from Sri Lanka and the fact of the Applicant’s strong links with India. That is, the Applicant is not a complete stranger to India nor did he state that he ever had any trouble in India on his previous visits there. It is plausible that he was asked questions about any LTTE links.  Particularly since the assassination of Prime Minister Rajiv Gandhi, the Indian authorities have been cautious and anxious about the LTTE.  However, there is no evidence that the Indian authorities were making any plans to detain, arrest and/or deport the Applicant.  He was a businessman from Colombo, not a Tamil from Jaffna. He had Indian people who knew him and close Indian relatives.  Although he had to apply for a permit every three months, this did not presage that he would be deported.”

7                     After a review of country information, the Tribunal expressed itself as satisfied that the Indian government would not deport the applicant to Sri Lanka.  It also noted that a finding that an applicant has effective protection in a third country does not depend on the existence of a legally enforceable right to enter that country.  Although it was strictly unnecessary to support an affirmation of the refusal of the protection visa, the Tribunal also considered, independently of the availability of protection in India, whether the applicant had a well-founded fear of persecution in the event of his return to Sri Lanka.  It noted the absence of documentary corroboration of his claimed legal and business difficulties.  It then made these observations about what it saw as the applicant’s failure to have recourse to legal advice;

“Also odd is the Applicant’s claim that he did not seek legal advice over the situation in which he found himself.  The Tribunal accepts that if he was under suspicion of fraud and/or of helping the LTTE, the police would pursue a case against him whether he had a lawyer or not.  It does not accept his claim that lawyers do not get involved in such matters in Sri Lanka.  The country has a thriving legal profession.  It also has a judicial system which while not perfect does continue to function independently.  Given his alleged long time role as a businessman working with overseas companies, it is safe to speculate that he must have needed the services of lawyers at some stage in his business life.   However, although the lack of documentary evidence and his claim that he sought no legal advice are odd and his explanations are unconvincing, they do not fatally damage his claim to have been a businessman who got into trouble.”

8                     In the Tribunal’s view, the applicant’s apprehension of further police investigation if he were to return to Sri Lanka was attributable to a normally incurred debt and the malign influence of a fellow Tamil, rather than to his known Tamil sympathies or any imputed connection with the LTTE.  As to his family connection with northern Sri Lanka, the Tribunal said, at p 11 of its decision;

“The Tribunal has considered his claim that his mother’s northern background and his cousin’s questioning over the Central Bank bombing contributed to official suspicion that he was an LTTE sympathiser.  It is clear that the authorities in Sri Lanka are suspicious of Tamils.  There is obvious evidence that Tamils undergo routine checking in the capital and that this sometimes reaches the level of harassment.  However, the Applicant’s cousin was released after questioning.  She was able to return to her job and lives in the Applicant’s family home.  That is, there is no convincing evidence that the authorities decided that she had anything to do with the bombing.  Rather the evidence is to the contrary.

The Tribunal is not satisfied that the Applicant was suspected of being an LTTE sympathiser for reasons of his mother’s Northern Province background.  The Applicant was born in Colombo.  After the communal riots of 1983 the family did not flee to Jaffna as many Tamils did but rather went to India.  They had been in business for a long time. He and eventually his parents also returned to Colombo from India.  When he took a bride, it was from India and not from the north.   The Applicant speaks English and Sinhalese as well as Tamil.  That is, there is no obvious reason why one particular fact, his mother’s birthplace, would outweigh all these other factors in determining that he was a Colombo businessman of Tamil ethnicity, and not a person to fit any obvious LTTE profile.”

9                     From a further review of country information, the Tribunal distilled the conclusion that the situation for Tamils in Colombo has improved to the point where there is now government recognition that they have rights and attempts are made to ensure that those rights are protected.  Accordingly, the Tribunal expressed its general conclusion about the applicant in these terms;

“The Tribunal accepts that there are abuses of human rights in Sri Lanka and that these are particularly associated with the insurgency.  However, an examination of the evidence before the Tribunal leads to a conclusion that the Applicant was to face questioning on fraud rather than on any LTTE connection.  It is satisfied that he had options to seek legal help for his case and that he was not denied that right.  It is satisfied that the decision to leave Sri Lanka was his and that he was not forced to flee.  It is satisfied his fear is not a well-founded fear of persecution for a Convention reason. 

As indicated above, it also finds he has the option of returning to India where he will be able to reunite with his family and be secure from deportation.”

10                  Ground C4 of the applicant’s amended application for review is in these terms;

“Procedures that were required by the Act or the Regulations to be observed in connection with the making of the decision were not observed (s.476(1)(a)).

PARTICULARS

The Tribunal failed to set out its findings on material questions of fact as required by s.430(1)(c) and failed to refer to the evidence or other material on which the findings of fact were based as required by s.430(1)(d):

(a)       In particular its failure to consider my claim that from the year 1979 I have been closely associating with friends who were involved in Tamil politics and business;

(b)       The finding that it was satisfied I was safe in India failing to consider that when I went to India with my parents in 1983 I left my parents in India and returned to Sri Lanka and failed to consider that my visits to India were brief and that I had not applied for asylum;

(c)        The finding that I have effective protection in India and failing to consider the difficulties to which I would be exposed as I have no rights of residency in India and such would be subject to reviewing a permit every three (3) months).”

11                  By that ground and in his contentions of fact and law as originally formulated, the applicant, who appeared in person, contended that the Tribunal had failed, contrary to s 430(1)(b) of the Migration Act 1958 (“the Act”), to disclose why it had rejected particular material when that rejection had induced the Tribunal to come to the decision which it did;  see Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 at [46].  However, in the light of the recent decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1, the applicant indicated in written submissions presented to the Court at the hearing that he did not pursue ground C4 of his amended application.

12                  The applicant persisted in his contentions that the Tribunal’s decision disclosed various errors.  Some of those were said to infect the conclusion that he was entitled to effective protection in India.  It is convenient to examine that matter first.

Availability of protection in a third country, India.

13                  The applicant first claimed that the Tribunal had failed to take into account material considerations being the fact, as he asserted it, that he had no current travel documents which would enable him to enter India and that he had no legally enforceable right to enter that country and acquire the status of a permanent resident there.  Reference was made in this context to the judgment of the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559.  There was no possibility in that case of Mr Guo, who was a national of the People’s Republic of China, obtaining protection in a third country.  Although it is an important authority on the application of “the real chance” test to the question of whether an applicant has a well-founded fear of persecution, it is of only indirect assistance on the assessment which the Tribunal was required to make of the future likelihood of the applicant’s obtaining protection in India.

14                  As he developed it, the applicant’s contention was that the Tribunal had “failed to address the correct interpretation and application” of Article 33(1) of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 (“the Convention”).  That Article provides;

“No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”

15                  In support of this contention, the applicant referred to Minister for Immigration and Multicultural Affairs v Gnanapiragasam (unreported, 25 September 1998).  In that case, Weinberg J upheld the submission of the Minister that the Tribunal had erred in law by failing to consider whether Germany was a safe third country to which the applicants could be returned without a breach by Australia of Art. 33.  The necessity to consider that question arose from the fact that s 36(2) of the Act makes it a criterion for the grant of a protection visa that the applicant be a non-citizen in Australia to whom Australia has protection obligations under the Convention.  Article 1A(2) of the Convention, as amended by the Refugees Protocol, provides;

“For the purposes of the present Convention, the term “refugee” shall apply to any person who:

.....

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country;  or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

16                  Article 1E of the Convention establishes an exclusion from application of that definition of “refugee” by stipulating;

“This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.”

17                  It was noted in Gnanapiragasam that von Doussa J had pointed out in Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543, that, as a result of the amendments to the Act effected by the Migration Reform Act 1992, the critical question which has to be determined in respect of an applicant who can be returned to a third country is whether he or she is a person to whom Australia has protection obligations under the Convention.  That, in turn, depends on whether the applicant answers the description in Art.1A(2) and on whether the third country is able, at the time of the application for a protection visa, to provide him or her with effective protection.

18                  Whether an applicant can establish an affirmative answer to the first of those questions and a negative answer to the second, is a matter of fact.  In Rajendran v Minister for Immigration and Multicultural Affairs (unreported, 4 May 1998), Mansfield J gave this exposition of the reasoning of the Full Court in Thiyagarajah;

“In my view, the effect of the Full Court decision in Thiyagarajah is that the Court must, as a matter of domestic law, in a matter such as the present first consider whether Australia has the obligation to assess the refugee status of the applicant having regard to the content of the obligations imposed by the Convention, relevantly Art 33.  If the return of the applicant to New Zealand would not expose Australia to a breach of Art 33 in relation to him, then the applicant is not a person towards whom Australia has that obligation.  In that event, it is not to the point to turn first to the definition of "refugee" under Art 1, or specifically to Art 1A(2) or to Art 1E.  It is unnecessary.  If, on the other hand, the applicant is a person to whom Australia has such an obligation under Art 33, then to assess the claim to refugee status, it may be necessary to address Art 1A(2) or Art 1E or both.  There is no necessary sequence in which those Articles need be addressed, although if Art 1E applies to exclude the applicant from the description of "refugee", it would be unnecessary to address Art 1A(2) at all.

I conclude that it is not correct to restrict the operation of Thiyagarajah to cases where the third country has granted the visa applicant refugee status.  The fundamental question is whether the status and legal entitlements of the visa applicant in the third country have the consequence that Australia is not obliged to assess the claim to refugee status.  The critical Article is Art 33 as it prescribes, for present purposes, whether Australia has such an obligation.  That emerges not just from the particular passages in Thiyagarajah to which I have referred above, but to the reference in the Full Court's reasons with apparent approval to Bugdaycay v Secretary of State for the Home Department [1987] AC 514; Nguyen Tuan Cuong v Director of Immigration [1997] 1 WLR 68 at 79; R v Secretary of State for the Home Department; Ex parte Abdi [1996] 1 WLR 298, and to the Court's consideration of those authorities and other materials at 698-702.”

19                  That reasoning was approved by another Full Court of this Court (von Doussa, O’Loughlin and Finn JJ) in Rajendram v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 526, which upheld his Honour’s decision, notwithstanding a clear factual mistake that Mr Rajendram had travelled to Australia on “travel documents issued by New Zealand” which contained a right of re-entry to New Zealand.

20                  The error which Weinberg J in Gnanapiragasam found to have occurred was a failure by the Tribunal to consider at all the question of whether Art. 33 operated to make it unnecessary to consider the applicant’s claim to refugee status.  Accordingly, the Tribunal’s decision that the applicants qualified for protection visas was set aside at the instigation of the Minister.

21                  In the present case, the Tribunal acknowledged that the applicant had no right of permanent residence in India and noted that he and his father had to renew their Indian residential permits every three months.  Although it did not expressly refer to Art. 33 of the Convention, it cited, in the passage reproduced at [5] of these reasons, Thiyagarajah, Rajendram and Gnanapiragasam and it is clear from the analysis of those cases which I have undertaken that the application of Art. 33 was determinative in each of them.  In W228 v Minister for Immigration and Multicultural Affairs [2001] FCA 860, French J held that, notwithstanding an absence of express reference to Art. 33, the Tribunal had asked the correct question, when it observed;

“What remains to be considered is whether or not he has had effective protection from that harm by being able to remain in a third country without risk of refoulement and, if so whether or not he could return.”

22                  I take the same view of the Tribunal’s postulation of the question in this case when it pointed out that;

“What is necessary is that a person should not be at risk of refoulement to a country where they have a well-founded fear of persecution.”

23                 The applicant, in his written submissions presented at the hearing in this Court, criticised the Tribunal for failing to consider his contention that India is not a signatory to the Convention.  However, the application of Art. 33 does not involve a presumption that the life or freedom of a refugee would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion if he were returned to the territory of a non-signatory State.  As another Full Court of this Court (Heerey, Carr and Tamberlin JJ) said in Minister for Immigration and Multicultural Affairs v Al-Sallal (1999) 94 FCR 549 (at 559);

“Article 33(1) is, so to speak, the engine room of the Convention.  In Australia prior to 1992 its significance may not have been so apparent because, as von Doussa J points out in Thiyagarajah (at 552), decision-makers then were concerned only to determine whether an asylum-seeker satisfied the Art 1A(2) definition of “refugee”, this having been expressly made part of Australian domestic law by s 4(1) of the Act.

Since 1992 the focus is on Art 33(1).  This is so whether the proposed refoulement is (i) direct to the asylum-seeker’s country of nationality (country A) or (ii) indirect by means of refoulement to country B which will, or might, refoule him or her to A.

In (i) the “territories” are the territories of A.  In (ii) the territories are also those of A, the only difference is that the alleged breach of Art 33(1) would be achieved indirectly (“in any manner whatsoever”) by refoulement to B.

This analysis suggests an answer to the present question.  In the former case the decision-maker has to make a factual assessment.  Is there a “real chance” of persecution for a Convention reason in country A?  That real chance may exist whether or not country A is a party to the Convention.  Likewise in the latter case, the decision-maker has to assess (also in terms of “real chance”) the prospects of “effective protection” in country B against refoulement to country A.  It is, as Emmett J said in Al-Zafiry, [v Minister for Immigration and Multicultural Affairs [1999] FCA 443] a matter of practical reality and fact.  The question whether B is a party to the Convention is relevant, but not determinative either way. 

The respondent’s case involves a substantial gloss on the plain language of Art 33(1).  Moreover, it is inconsistent with the unchallenged proposition that there can be a real chance of lack of effective protection notwithstanding that the third country in question is a party to the Convention.  The learned primary judge noted that there are currently 133 States which are parties to the Convention.  It is a sad reality of modern times that countries do not always honour human rights, whether enshrined in domestic constitutions or in international treaties to which they are parties.  To treat the fact of a country being a party to the Convention as conclusive would be a distortion of the Convention’s language and subversive of its underlying purpose.  The converse must logically follow.  As a matter of fact, parties may have better effective protection in some countries which are not parties to the Convention (a category which, incidentally, includes the United States) than in many which are.”

24                  The status of India as a non-signatory to the Convention was a piece of evidence or an existing fact relevant to the ultimate question of fact, which, I consider, the Tribunal correctly posed for itself, but was not determinative of that question.  The failure of the Tribunal to refer to that anterior fact does not entail that it ignored it.  The inference is, at least, equally open that the Tribunal considered India’s status as a non-signatory to the Convention but did not regard it as outweighing the positive indications which it identified in the passages quoted at [5] and [6] above that the applicant was likely to be given effective protection if returned to India. 

25                  For these reasons, the applicant has not established that the Tribunal made an error of law in the application to his circumstances of Art. 33 of the Convention.

Was there “no evidence” in the sense contemplated by s 476(1)(g)?

26                  The applicant contended in relation to this first basis of the Tribunal’s decision that there was no evidence to justify the finding that the Indian Government would not deport him to Sri Lanka and that he was safe in India and had previously enjoyed protection there.  I do not accept that there was no evidence of those matters.  The applicant himself produced evidence that he and his father had to renew their Indian residence permits every three months.  The available inference that the applicant’s father had been able to do that without particular difficulty in the three years since May 1998 supports the conclusion that the Indian government would not capriciously or maliciously refoule the applicant or his father to Sri Lanka. 

27                  In any event, s 176(4) of the Act provides;

The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

(a)       the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established;  or

(b)       the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.”

28                  As I said in Pei Lan He v Minister for Immigration and Multicultural Affairs [2001] FCA 446 at [37];

It was contended on behalf of the applicant that a failure by the Tribunal to refer to evidence on which it based “crucial” findings of fact gives rise to a presumption that there was no evidence for those findings.  However, in the present case, the Tribunal was not required by the Act to reach a decision refusing the application only if a particular matter was affirmatively established which, I consider, s 476(4) requires.  The Tribunal was entitled to make a decision refusing the application upon being satisfied that the applicant did not have a well-founded fear of persecution for a Convention reason.  The attainment of that state of satisfaction did not require the affirmative establishment of a particular matter.”

29                  That observation can be paraphrased to apply with equal force to a decision that a protection visa be refused because, as a result of the application of Art. 33 of the Convention, an applicant is not a person to whom Australia has protection obligations under the Convention.

The attack on the Tribunal’s conclusion that the applicant did not have a well-founded fear of persecution in the event of return to Sri Lanka.

30                  The applicant also complained that the Tribunal had erred in law in its approach to this second question which only arose if its conclusion on the first question had been wrong.  Somewhat inconsistently with that complaint, the applicant contended that “having decided that I had protection in India and therefore Article 33(1) was a bar to the consideration of the application itself the Respondent incorrectly interpreted its function by proceeding to decide the merits of the protection visa application out of “extra precaution”.”

31                  In light of the conclusion which I have reached on the anterior question, it is strictly unnecessary for me to examine the alternative basis on which the Tribunal resolved to affirm the refusal of a protection visa.  However, out of deference to the careful submissions addressed to it, it is appropriate to indicate briefly why I have been unable to discern any error in the Tribunal’s treatment of this second issue.

32                  The applicant complained that the Tribunal had foreclosed reasonable speculation on the chance of his persecution for a Convention reason in Sri Lanka by not asking “What if I am wrong?”.  He referred, in support of this complaint, to Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 235, and Guo (supra).  However, the obligation to ask that question only arises if, in the course of its reasoning, the Tribunal evinces a real doubt about the correctness of one or more of the findings in respect of past events which underpin its conclusion as to the existence of a well-founded fear of persecution.  In Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220, Sackville J, with whom North and Kenny JJ agreed, said, at 239-240;

“It follows from the observations of the High Court in Wu Shan Liang and Guo that there are circumstances in which the RRT must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur.  This result, perhaps surprising at first glance, comes about because the ultimate question before the RRT is whether it is satisfied that the applicant has a well-founded fear of future persecution, in the sense of having a “real substantial basis” for the fear.  The RRT must not foreclose reasonable speculation about the chances of the hypothetical future event occurring.

.....

In this context, it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence.  When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question.  Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a “real substantial basis” for the applicant’s claimed fear of persecution.  Similarly, if the non-occurrence of an event is important to an applicant’s case (for example, the withdrawal of a threat to the applicant) the possibility that the event did not occur may need to be considered by the decision-maker even though the latter considers the disputed event probably did occur.

Although the “What if I am wrong?” terminology has gained currency, I think, with respect, that it is more accurate to see the requirement discussed in Wu Shan Liang and Guo as simply an aspect of the obligation to apply correctly the principles for determining whether an applicant has a “well-founded fear of being persecuted” for a Convention reason.  The reasonable speculation in which the decision-maker must engage may require him or her to take account of the chance that past events might have occurred, even though the decision-maker thinks that they probably did not.  In the language of s 476(1)(e) of the Migration Act, a failure to do so may constitute “an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found”.

In my view, there is no reason in principle, and nothing in the reasoning of the High Court, supporting a general rule that the RRT must express findings as to whether alleged past events actually occurred in a manner that makes explicit its degree of conviction or confidence that the findings are correct.  In Guo itself, the findings were not expressed this way, yet the joint judgment considered it was enough that the RRT appeared to have no doubt that the probability of error was insignificant.  Moreover, had the Court intended to impose such an extraordinary burden on the RRT, it might have been expected to say so.” (original emphasis)

33                  In my view, the findings in the present case on the past events said to create a chance of future persecution in Sri Lanka, did not make it appear that the Tribunal entertained any doubt about their correctness.  Indeed, many of those findings were based on matters which were common ground.  Without undertaking an exhaustive review of the relevant findings, I point to the Tribunal’s acceptance of the applicant’s association with the TULF, assistance in money and kind which he gave, in company with other Tamil businessmen, to Tamil refugees, and the fact that he had been malevolently accused in the United Kingdom of links with the LTTE.  The Tribunal expressed without qualification the conclusion that “it was not automatic that he would be maltreated to the point of persecution if questioned” by the Sri Lankan police about the alleged customs fraud.  It also unhesitatingly found that any questioning would be prompted by that matter and not by any actual or imputed connection between the applicant and the LTTE.

34                  In the course of his oral submissions on the hearing in this Court, the applicant instanced the failure of the Tribunal to refer to, or making findings about, four other Tamil businessmen in similar case to himself who had each been detained without trial in Sri Lanka and had only been able to procure their release by the expenditure of large sums of money, an expedient for which he would lack the financial resources.  However, when pressed to identify the evidence of that matter before the Tribunal, he could point only to this passage in a written statement by him which was forwarded to the Tribunal on 22 July 1999;

“I also wish to point out that a Sinhalese in this my situation will not be treated in this way by the authorities of my country but will be handed over to custom officers.

In several occasions many Tamil traders involved in such activities had been taken into custody by government authorities and had been detained, harassed and even persecuted purely due to their ethnicity.”

35                  Having regard to its extreme generality, it is understandable that the Tribunal did not find it necessary to make any more explicit finding about that evidence on its way to reaching a conclusion about the chance of future persecution of the applicant in Sri Lanka for a Convention reason, than its noting of that evidence in the penultimate paragraph of the extract from its reasons quoted at [3] above.

The “no evidence” point in relation to the chance of persecution in Sri Lanka.

36                  The applicant complained that there was no evidence to justify the Tribunal’s rejection of his claim that lawyers in Sri Lanka do not get involved in matters like the allegations of customs fraud against him.  It will be recalled that, in the passage quoted at [7] above, the Tribunal said;

“It does not accept his claim that lawyers do not get involved in such matters in Sri Lanka.  The country has a thriving legal profession.  It also has a judicial system which while not perfect, does continue to function independent.”

37                  The inference I draw is that the Tribunal member had perceived evidence for those conclusions either in country information or in matters which had come to her notice in course of consideration of other applications involving Sri Lankan nationals.  Moreover, the rejection of the applicant’s evidence that lawyers do not get involved in such matters was simply by way of explaining why it did not accept his contention that he would be denied the protection ordinarily afforded by the Sri Lankan legal system.  That explanation went beyond what was required of the Tribunal because, as McHugh J pointed out in Re Minister for Immigration and Multicultural Affairs, Ex parte Durairajasingham (2000) 168 ALR 407, at 423;

“If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed.  The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.

38                  In any event, for the reasons explained in [27] and [28] above, facts about the nature of the legal profession in Sri Lanka or the functioning of the judiciary in that country were not particular matters which required to be established before the Tribunal could decide that the applicant was not a person to whom Australia has protection obligations.  Accordingly, by force of s 476(4)(a), the ground afforded by s 476(1)(g) cannot be made out in this respect.

Conclusion

39                  For the reasons just indicated, the applicant’s attacks on the Tribunal’s second, and alternative, conclusion, also fail.  In his written submissions presented at the hearing, the applicant asserted that the Tribunal, by “assuming” certain matters, had disclosed actual bias.  It is sufficient to note that actual bias was not a ground relied on in his amended application and to observe that the so-called “assumptions” were actually findings based on the Tribunal’s perception of the evidence, including country information, available to it.   The accusation of actual bias cannot be sustained.  Since all the direct attacks on each of the Tribunal’s alternative conclusions have also failed, the application must be dismissed with costs.

Associate:

Dated:              17 July 2001