FEDERAL COURT OF AUSTRALIA

Selvarajah v Minister for Immigration & Multicultural Affairs [2001] FCA 1307

MIGRATION LAW – Protection visa - Application for review of decision of Refugee Review Tribunal – Whether Refugee Review Tribunal misapprehended applicant’s claim – Whether Refugee Review Tribunal failed to consider the aggregation of applicant’s claims

WORDS AND PHRASES – “cumulative”

Migration Act 1958 (Cth) Part 8; ss 29, 36, 65, 475, 476

Migration Regulations 1994 (Cth) Sched 2, cl 866.221

Convention Relating to the Status of Refugees, 1951

Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 173 cited

Kaur v Minister for Immigration and Multicultural Affairs [2000] FCA 1401 followed

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (1999) 168 ALR 407 followed

SEENITHAMBY SELVARAJAH v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 230 OF 2001

MARSHALL J

MELBOURNE

11 SEPTEMBER 2001

THE COURT ORDERS THAT:

1.         The application be dismissed with costs.

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 for judicial review of a decision of the Refugee Review Tribunal (“the RRT”), dated 9 February 2001, which affirmed the decision of a delegate of the respondent Minister not to grant the applicant a protection visa. The review is sought pursuant to Part 8 of the Migration Act 1958 (“the Act”).

Background

2                     The applicant is a 46 year old Sri Lankan citizen of Tamil ethnicity. Before leaving Sri Lanka he was employed as a school principal at a Tamil school. The applicant entered Australia on 26 January 1996. He travelled to Australia whilst in possession of a valid Sri Lankan passport that contained an Australian visitor visa

3                     On 1 May 1996, the applicant applied to the respondent Minister for a protection visa. On 18 October 1996, a delegate of the respondent Minister refused to grant the applicant such a visa. Subsequently, the applicant applied to the RRT to review the decision. His application for a protection visa was first considered by the RRT in 1997. The RRT affirmed the decision of the Minister’s delegate not to grant the applicant a protection visa.

4                     As a consequence of proceedings in the High Court of Australia and in this Court the matter was remitted to the RRT on 14 September 2000. A new RRT hearing was afforded to the applicant. The result of that hearing was a decision to affirm the determination of the respondent’s delegate on 18 October 1996 to refuse the applicant a protection visa.

Legislative Context

5                     Under s 29 of the Act the respondent is able to grant a non-citizen a visa which entitles such person to travel to, enter, and remain in Australia. Section 65 of the Act provides, inter alia, that if the Minister after considering a valid application for a visa is satisfied as to certain matters set out in the section, he or she is to grant the visa. Section 36(1) of the Act provides for a class of visa known as a protection visa. Pursuant to s 36(2) of the Act, a criterion for the grant of a protection visa is that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees 1951 as “amended” by the Protocol Relating to the Status of Refugees, 1967 (“the Convention”). Australia is a signatory and party to the Convention.

6                     Article 1A(2) of the Convention provides that a refugee is 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, is unable or, owing to such fear, is unwilling to return to it.”

7                     Certain criteria must be fulfilled before the Minister will be satisfied that an applicant is entitled to a protection visa. Of particular relevance is the criterion set out in cl 866.221 of Sch 2 to the Migration Regulations 1994 which requires that the Minister is satisfied that an applicant for a protection visa is a person to whom Australia has protection obligations under the Convention.

8                     Under s 475(1)(b) of the Act a decision of the RRT is a “judicially reviewable decision”. Section 476 of the Act sets out all the grounds upon which an application may be made to the Court to review a judicially reviewable decision.

The Applicant’s Main Claims before the RRT

(i)         The LTTE levy

9                     The applicant claimed that during his time as a school principal he was required by the Liberation Tigers of Tamil Eelam (“the LTTE”) to collect a levy on its behalf from other teachers at the school. Consequently, he further claimed, the Sri Lankan Security Forces (“the SLSF”) suspected him of being an LTTE supporter.

(ii)               TELO

10                  The applicant claimed that he lived next door to a Tamil Eelam Liberation Organisation (“TELO”) army camp. TELO is opposed to the LTTE and is aligned to the SLSF. He claimed that members of TELO occasionally borrowed or removed from him articles such as spades and lighting equipment. He further claimed that the LTTE observed TELO activities at his house and suspected him of supporting TELO. Additionally, he told the RRT that the LTTE informed him that one day they would attack the TELO camp and if TELO came to know of that intention, the LTTE would hold the applicant responsible.

(iii)             TULF

11                  The applicant claimed that he actively supported a relative during an election campaign in 1994. The relative stood as a candidate for the Tamil United Liberation Front (“TULF”). Because of this the applicant alleged that he was seen by the LTTE as an enemy, resulting in LTTE demanding that he collect money for it.

(iv)             Damage to House

12                  The applicant claimed that in December 1995 the LTTE attacked the TELO camp “and ran amuck through his house”. He also claimed that on four occasions between 1985 and 1995 his house was damaged in terrorist attacks.

(v)               Experiences of the Applicant’s Wife

13                  The applicant claimed that since his departure from Sri Lanka, his wife has continued to be prevailed upon to donate money to the LTTE.

(vi)             Murder of a Friend

14                  The applicant claimed that an unidentified assailant shot a friend of his.

(vii)           Detention of the Applicant’s Brother

15                  The applicant claimed that his elder brother was arrested in Colombo in July 1998 for involvement in an alleged plot to assassinate the President of Sri Lanka. The arrest allegedly arose as a consequence of the brother having informed the LTTE of the President’s proposed movements.

(viii)         Supply of Chemicals

16                  The applicant claimed that he was perceived by the SLSF to have supplied chemicals to the LTTE by distributing them to his students. This claim was first put at the initial RRT hearing.

(ix)             Airport Detention

17                  The applicant claimed he would be detained on return to Sri Lanka.

The RRT’s Findings

18                  The RRT accepted that the applicant was occasionally required to collect money for the LTTE but noted that:

“… the LTTE targeted anyone in the civilian population with obtainable resources in areas where it was able to exercise a strong influence.”

The RRT found that:

“the applicant was not targeted by reason of his occupation or political opinion. He was among a disparate number of people who were targeted as suitable victims, largely due to their being of some means and located in areas of LTTE influence. They do not constitute a particular or cognisable social group.”

19                  The RRT went on to find that the demands for money did not amount to persecution because of the“absence of consequences amounting to persecution and the absence of a nexus with the Convention.”

20                  The RRT did not accept that SLSF would suspect the applicant of being an LTTE supporter because he might have been observed providing money to it occasionally. Importantly, the RRT said:

“If the authorities had any reason to wonder if he provided money voluntarily to the LTTE it is implausible that they would not have taken immediate action against him, especially given the threat posed to them by the LTTE and its supporters and the history of strong retaliation against the LTTE by the Sri Lankan authorities.”

21                  The RRT did not accept that the applicant was exposed to a real chance of persecution as a result of TELO members being encamped near his residence. It disbelieved the applicant’s claim that the LTTE informed him of its intention to blow up the TELO camp. The RRT found that occasional damage to the applicant’s house was a consequence of attacks by the LTTE in the immediate vicinity to his residence. It held that inadvertent damage to the house did not amount to persecution for a Convention reason.

22                  The RRT accepted that the applicant supported TULF and campaigned for his relative in 1994. It noted that TULF was a legitimate political force and found that his support for TULF would not lead to him being suspected of anti-Government activity or association with the LTTE. Further, the RRT noted that the relative of the applicant’s subsequent “departure from the parliament and the absence of future campaign activity … further reduces any risk of persecution of the applicant from the LTTE or others”.

23                  The RRT held that any continuing demands by the LTTE of the applicant’s wife for money did not amount to persecution.

24                  The RRT accepted that a friend of the applicant was shot dead, but noted that the attacker was not identified. It concluded that the event “does not indicate a real chance of persecution of the applicant for any Convention reason.”

25                  The RRT found the events concerning the applicant’s brother to be remote from the applicant; having occurred some two and a half years after the applicant left Sri Lanka.

26                  The RRT rejected the applicant’s claims about the supply of chemicals as lacking credibility. It found that his claims that he would be detained upon return to Sri Lanka ran counter to available evidence contained in reports of the Department of Foreign Affairs and Trade.

Error of Law: s476(1)(e)

27                  A decision of the RRT is reviewable under s476(1)(e) of the Act on the ground:

“that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision.”

28                  Counsel for the applicant, Mr Hurley, submitted that the RRT erred in law by misapprehending how the applicant’s claim about being compelled to donate to the LTTE was put. The emphasis of the applicant’s claim, it was submitted, was that he would be perceived by the SLSF as an LTTE supporter. This submission is devoid of merit. The RRT correctly perceived how this claim was put and specifically dealt with how the applicant would be perceived by the authorities in the passage which I have earlier quoted from at [20].

29                  Mr Hurley submitted that the RRT made two legal errors on the topic of the applicant’s claims concerning the arrest of his brother. First, Mr Hurley contended that the RRT had required that the applicant prove his brother was persecuted for a Convention reason, rather than consider whether the applicant would face persecution because of how he would be perceived by the SLSF as a result of his brother’s arrest. Second, it was submitted that the RRT failed to address the arrest of the brother as having any impact on whether the applicant’s fear was well founded. It was contended that these errors of the RRT emanated from its misapprehension of the concept of “serious non-political crime”, referred to in Article 1F(b) of the Convention.

30                  In response Mr Mosley, counsel for the respondent, noted that while the RRT had concluded that there was no Convention basis for the arrest of the applicant’s brother, it did not rely on that conclusion to dismiss any claim by the applicant that he, himself, feared harm as a consequence of his brother’s arrest. I agree. In fact, the RRT did address whether there was a real chance of persecution of the applicant as a result of his brother’s arrest. It concluded that there was not, given that the applicant had left Sri Lanka two and a half years earlier and had no profile that made him of interest to the authorities. In determining that there was no real chance of persecution of the applicant as a consequence of the arrest of his brother, the RRT must be taken to have found that the applicant’s fears of persecution on account of the arrest were not well founded. I reject this aspect of the applicant’s case.

31                  I also reject Mr Hurley’s criticism of the RRT’s decision by reference to Art 1F(b) of the Convention. A person who has committed a serious non-political crime is ineligible to seek a protection visa as a consequence of the relevant exclusion provided by Art 1F(b); see for example, Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 173. Article 1F(b) was not referred to by the RRT in its reasons for decision. I accept the submission of Mr Mosley that the RRT merely found that the charges against the applicant’s brother related to “a serious criminal matter”. That reference was not used to justify any bar to the applicant seeking to rely on his brother’s arrest to suggest that he, the applicant, might have a well founded fear of persecution on account of his brother’s arrest. Critically, the RRT effectively found that the arrest of the applicant’s brother did not result in such an objective well founded fear of persecution being held by the applicant.

32                  Mr Hurley submitted in his contentions of fact and law that the RRT erred in law in failing to consider the “aggregation of what it accepted as the applicant’s claims”. I find this submission difficult to comprehend. That is especially so given that the RRT said in the concluding paragraph of its reasons:

“In considering all the circumstances of this case, including cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason.”

33                  In any event, the applicant’s submission in this regard resembles a submission put to Moore J and rejected by him in Kaur v Minister for Immigration and Multicultural Affairs [2000] FCA 1401. His Honour at [15] held:

“…the final quoted paragraph of the Tribunal’s reasons… suggests that in coming to its ultimate conclusion the Tribunal did have regard to the entirety of the evidence. The Tribunal stated that “[t]he evidence has led me to the conclusion that her fear of what might follow her return is not well-founded”.  The matters referred to by Counsel for the applicant are insufficient, in my opinion, to warrant a conclusion that this statement should not be treated as indicating the Tribunal considered the combined significance of all the facts (as it found them) in reaching the conclusion it did.  While it may be accepted that inferred error may be manifested in the structure of a decision, there is no reason why the High Court’s censure against overly critical analysis, in Wu at 291 per Kirby J, ought not apply with equal force to an error said to be manifested in the structure of a decision as it does to the words adopted by the Tribunal.”

34                  Orally, Mr Hurley submitted that the concluding paragraph of the RRT’s reasons (referred to above at [32]), disclosed a legal error because the RRT had accepted some of the applicant’s claims and was disentitled to find “cumulatively”, in all circumstances, that the applicant did not posses the requisite fear. This submission echoes one rejected by McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (1999) 168 ALR 407 at [48-49]. Critically, his Honour discussed the consequence of the use of the phrase “cumulative effect” at [49]:

“The language of “cumulative effect” adds nothing. The absence of a substantive complaint of an error of law in this ground (as opposed to a quarrel with a factual finding dressed up as an error of law)…compel the conclusion that [this] ground … is not made out.”

35                  McHugh J’s comments are well suited to the circumstances of this case. The reference to “cumulative effect”, and indeed the entire last paragraph of the RRT’s decision, adds nothing to, nor detracts from, what was found earlier by the RRT in its reasons for decision.

Order

36                  Consequently, having regard to the foregoing the Court will order that the application be dismissed with costs.

Associate:

Dated:              11 September 2001