FEDERAL COURT OF AUSTRALIA

Abel v Minister for Immigration & Multicultural Affairs [2001] FCA 1010

MIGRATION – refugee - application for judicial review of a Refugee Review Tribunal decision – allegation that Tribunal failed to consider applicant’s case on the basis of his membership of a particular group – claim of membership of a group not made before the Tribunal – finding by Tribunal that applicant’s association with Tamils would not attract persecution– no reviewable error of law – application dismissed.

Migration Act 1958 (Cth)

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

Hanna v Minister for Immigration and Multicultural Affairs [2000] FCA 1413

Hanna v Minister for Immigration and Multicultural Affairs [2001] FCA 63

Gnanasambanther v Minister for Immigration and Multicultural Affairs [2001] FCA 693

IVAN KINGSLEY ABEL, JANAKI ABEL, KOKILA ABEL AND JANENE ABEL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 76 of 2001

MOORE J

1 AUGUST 2001

SYDNEY

THE COURT ORDERS THAT:

1.         The application is 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

Introduction

1                     This is an application by Ivan Kingsley Abel (“the applicant”) and members of his family for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 7 December 2000 affirming a decision of a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”), refusing to grant the applicant and his family protection visas.  The criterion for the grant of such a visa is that the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees of 28 July 1951 as amended by the Protocol Relating to the Status of Refugees of 31 January 1967 (“the Convention”).

Background

2                     The applicant is a citizen of Sri Lanka, of Tamil ethnicity, who arrived in Australia on 12 December 1997 with his wife and two children.  On 31 January 1998 he lodged an application with the Department of Immigration and Multicultural Affairs for a protection visa under the Migration Act 1958 (Cth) (“the Act”).  On 28 May 1998 a delegate of the Minister refused the grant of a protection visa and on 23 June 1998 the applicant applied to the Tribunal for review of that decision.

3                     The gravamen of the applicant’s claims was that if forced to return to Sri Lanka, he would be persecuted on the grounds of nationality and ethnicity, and by reason of imputed links with the Liberation Tigers of Tamil Eelam (LTTE). 

Proceedings before the Tribunal

4                     The reasons for decision of the Tribunal commenced with a discussion of the relevant  legislation and what is comprehended by the definition of “refugee” and by the notion of “persecution”.  Reference was made to the judgments of the High Court in 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 225, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 and Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 170 ALR 553.

5                     In a section headed “Claims and Evidence”, the Tribunal summarised the claims made by the applicant in his application for a protection visa, in written submissions in support of the application and oral evidence he gave to the Tribunal on 21 June 2000. 

6                     Prior to setting out the applicant’s account, the Tribunal noted that the applicant was widely travelled and had been to Australia on three prior occasions in 1990, 1994, and 1995 before his visit in December 1997 which culminated in his application for refugee status.  The applicant had applied unsuccessfully on two prior occasions to migrate to Australia.  His mother and five brothers are permanent residents in Australia.

7                     A summary of the applicant’s account, as recounted by the Tribunal, is as follows.  The applicant was born in 1951 in Kandy, Sri Lanka, but spent most of his life in Colombo where he completed his education and obtained a diploma in hotel management in 1979.  His account began in 1958, when difficulties were first experienced by his family as a result of the conflict between Tamils and Sinhalese.  He claimed that his family was forced to relocate on several occasions due to harassment from Sinhalese gangs and that in 1983 the family home was robbed and then destroyed by fire, with the consequence that his family was again forced to move away.

8                     In 1984 the applicant married a Sinhalese woman.  In 1989, eight members of the Janatha Vimukthi Peramuna (JVP), an extreme right wing Sinhalese nationalist group arrived at the applicant’s house.  They confronted his wife with the allegation that she was married to a Tamil and demanded to know the whereabouts of his place of work, which she provided to them.  The JVP members located the applicant at his workplace where they aimed guns at him, removed his national identity card, threatened him and gave him two months in which to leave the area. 

9                     The applicant and his wife then relocated to Kirupalona, a Muslim area where they lived for two years without incident.  In September 1993, after the sale of the home they were leasing in Kirupalona, they moved to Nugegoda, a predominantly Sinhalese area in the south east of Colombo.  There they purchased their own home.  In 1996, financial hardship led them to lease a spare room in their house.  On 15 June 1996 the applicant let the room to two Tamil students.  A short time later, after experiencing disruption caused by the arrival of visitors to the two boarders late at night, the applicant notified the boarders they would not be able to stay beyond the three months for which they had paid in advance.

10                  After the bombing of a train station in Colombo in July 1996, security checks were undertaken in residential areas.  The area in which the applicant lived was checked in about September 1996.  About a week after the boarders had left, the applicant was visited by the security forces in relation to the bombing.  He was questioned.  The applicant did not inform the security forces about the boarders who had left.  He considered it unimportant as they had vacated the premises. 

11                  Later in September he was again visited by the police for a routine check.  On 30 October 1996 the police arrived at his house at approximately 1am and said that they had information he was housing Tamil boarders.  His house was ransacked and he was physically assaulted.  He was taken to a police station and further assaulted and questioned about the whereabouts of the Tamil boarders.  He was unable to respond as he had no knowledge of their current location.  The applicant was detained for four days and during that time was not permitted to contact his family.  He was released, however, on 2 November 1996 after a bribe was negotiated by his wife through a friend who was acquainted with the police sergeant at the station where the applicant was being held.

12                  After this incident the applicant’s house and car were searched regularly and he was, on some of these occasions, assaulted by the police with his family present.  These searches and assaults were restricted to him.  Other families in the neighbourhood did not suffer similar treatment. 

13                  On 2 February 1997 the applicant was granted a visa to enter Australia, which prompted him to begin selling some of his possessions.  This action resulted in his neighbours reporting him to the police who, after accusing him of attempting to leave Sri Lanka, instructed him to report to the police station on a fortnightly basis.

14                  On 30 October 1997 the applicant was visited by army personnel who were under instructions to remove the family’s passports.  The applicant subsequently made contact with a friend who had connections in the police force.  The friend contacted the police, whose response was to nominate a sum of money which would ensure the return of the passports.  The sum of 75,000 rupees was paid by the applicant and the passports were returned on 2 December 1997.  On 11 December 1997 the applicant and his family departed Sri Lanka for Australia.

15                  The Tribunal considered the applicant’s evidence and claims in a section in its reasons titled “Findings and Reasons”.  It began with the statement that it did not accept that the applicant had been persecuted for reason of being imputed with a pro-LTTE political opinion, and considered that the applicant had “fabricated this claim in order to support a claim to refugee status”.  It considered the applicant’s claims to be illogical and not credible, and found his claims were inconsistent with the known situation evident from independent country information.  It addressed the claims in more detail, as follows.

16                  The Tribunal accepted the claim in relation to the incident in 1983 where the family home was looted and destroyed, finding it consistent with the situation of many Tamils during the riots taking place at that time.  It did not, however, consider that such an event “is likely to recur in the foreseeable future”.

17                  In relation to the incident in 1989 in which the applicant claimed to have been threatened by the JVP, the Tribunal accepted that it did in fact take place.  It referred, however, to independent country information available to it to support its finding that:

“(T)he JVP is no longer a threat to Sri Lankans or to the Sri Lankan government and I find that the applicant does not have a well-founded fear of persecution by the JVP if he returns to Sri Lanka.”

18                  The Tribunal next considered the applicant’s claim of persecution by reason of imputed links with the LTTE as a result of having let a room to the two Tamil boarders.  It did not accept that such persecution took place.  In reaching this conclusion it relied on the independent country information concerning persons likely to be suspected by the authorities as having an involvement with the LTTE, as well as the circumstances of the applicant himself during the time he claimed to have been of interest to the authorities.  It added:

“(I)t is apparent that the Sri Lankan government has a range of options for dealing with the serious threat to its population from LTTE terorism which includes charges under the PTA and the ER for harbouring LTTE members.  The applicant’s evidence is that not only was he not so charged, despite being detained for four days and being under active investigation for over 13 months, he was not even charged with the relataively minor failure to register his tenants as required under the ER.  The applicant’s claim that the police told him he was not required to register tenants if he was satisfied as to their identity is particularly unconvincing, given that at the time he took in the boarders the police and security forces were responding to the most recent LTTE bombing (in January 1996, when 100 people in central Colombo were killed and over 1,400 injured) and a state of emergency had been declared in April 1996 covering all of Sri Lanka including Colombo.  The requirement for registration of boarders, contrary to the applicant’s evidence, was in place since November 1994.”

The Tribunal said it did not find the applicant’s account of the chronology of events compelling.  It said:

“The applicant stated that either neighbours or the private security guards reported to the police that the applicant had Tamil boarders in his house, who also had frequent late night visitors.  The applicant also stated that these visitors were required to sign in to pass through the private security to the housing estate.  These events occurred very shortly after a serious LTTE bomb attack in Colombo and at a time when Colombo was declared to be in a state of emergency.  Yet the applicant claims that the police, despite having checked his house twice in routine security checks in September, did not investigate him in relation to the suspicious Tamil boarders until 30 October, even though the applicant states that the police told him they suspected the boarders of being LTTE members involved in the most recent bombing.  I do not accept that the police would have delayed its investigation of the applicant in this manner and for so long.

I do not accept that the applicant would have been released without charge if the police genuinely suspected him of involvement in the July 1996 LTTE bombing.  I do not accept that the police would release such a suspect for payment of a bribe, nor that he would be released unconditionally.  The applicant stated that he was not put on reporting conditions until February 1997, 3 months after his release from detention, when police became aware of his preparations to depart Sri Lanka.”

19                  In relation to the matter of the reporting conditions imposed on the applicant and the removal of the family’s passports, the Tribunal did not accept that “the police would have taken so long to react to obvious signs of the applicant’s preparations to leave, while he was on reporting conditions and when the police were checking him on a daily or second-daily basis.”  It continued:

“The applicant states that he commenced selling his household possessions in February 1997, after he obtained the Australian visa on 2 February.  Yet he claims that his passport was not confiscated until 30 October 1997.  He also states that the police put him on reporting conditions in February 1997 precisely because the police suspected he would attempt to leave the country.  If the applicant was genuinely suspected of LTTE involvement, it is in my opinion very unlikely that the police would not simply have charged him under the PTA and held him on remand without bail.”

In relation to the applicant’s wife, whose passport was renewed on 11 February 1997, the Tribunal stated:

“I do not accept that the Sri Lankan authorities would have renewed the passport of the wife of a person actively suspected of involvement in the July 1996 bombing in Colombo which resulted in 70 deaths and 500 casualties.”

Issues and Conclusion

20                  The application for judicial review was listed for hearing on Thursday 7 June 2001.  As the applicant was not legally represented (though assisted by a friend with some legal training) it was difficult to discern with any precision the legal foundation for the grounds identified in the application.  However the only or principal issue raised by the applicant was an alleged failure of the Tribunal to comply with s 430 of the Act.

21                  On 31 May 2001 the High Court gave judgment in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30.  The Court’s judgment effectively disposed of the applicant’s case in the present matter in the sense that the ground apparently relied upon, as a matter of law, is not a ground for judicial review by this Court.  In the circumstances, and with the consent of the respondent, I gave the applicant leave to file further submissions in support of the application.

22                  In supplementary written submissions filed on 18 June 2001 the applicant recast the basis on which he sought to impugn the decision of the Tribunal.  Again, because the applicant is not legally represented, the precise basis on which the reformulation is based is not entirely clear.  However, it revolves around the Tribunal’s consideration of the applicant’s claims concerning the two boarders.  The submission appeared to be made that because the applicant had provided lodgings for the two young Tamils, he would have been viewed as associated with them and a member of a particular social group.  That group was characterised in the written submissions as “Tamils in Colombo closely associated with the LTTE”.  It was submitted that the Tribunal failed to consider whether the applicant might have a well founded fear of persecution by reason of his membership of that group.

23                  The difficulties with this submission are twofold.  First, the findings of the Tribunal were clearly to the effect that, notwithstanding that the applicant may have let a room to two young Tamils (no express finding about this matter was made), the Tribunal appears to have rejected the claims of the applicant that, as a matter of fact, he came to the attention of the authorities and was subjected to mistreatment.  That is, the Tribunal rejected the factual foundation of the applicant’s contention that he would be persecuted because of his association with the two Tamil boarders if he was to return to Sri Lanka,.

24                  The second difficulty is that the proposition that the applicant was a refugee because he was a member of a particular social group was never raised with the Tribunal by the applicant.  That is, it was never suggested to the Tribunal that the applicant had a well founded fear of persecution based on his membership of a particular social group rather than because of imputed political opinion or ethnicity.  The fact that the Tribunal did not consider that the applicant might be a refugee on that basis does not, in those circumstances, establish reviewable error:  see Hanna v Minister for Immigration and Multicultural Affairs [2000] FCA 1413 (and on appeal [2001] FCA 63) and Gnanasambanther v Minister for Immigration and Multicultural Affairs [2001] FCA 693 at paras 18-20 per Emmett J. 

25                  No reviewable error of the character identified by the applicant in his written submissions has been demonstrated.  I dismiss the application and order the applicant to pay the respondent’s costs.

Associate:

Dated: