FEDERAL COURT OF AUSTRALIA

Sivakumaran v Minister for Immigration & Multicultural Affairs [2001] FCA 1496

V 569 of 2000

KANDIAH SIVAKUMARAN, SATHANATHY SIVAKUMARAN and SANGHAVY SIVAKUMARAN  -v-  THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RYAN J

25 OCTOBER 2001

MELBOURNE

THE COURT ORDERS:

1.      THAT the application be dismissed.

2.      THAT the applicants pay the respondent’s costs of the application, including any reserved costs, 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                     The applicants are Sri Lankan nationals who arrived in Australia on visitors’ visas on 24 August 1998.  On 6 October 1998 they applied for protection visas.  That application was rejected by a delegate of the Minister on 12 March 1999.  On 25 March 1999 the applicants applied to the Refugee Review Tribunal (“the Tribunal”) for a review of that decision.  Following a hearing on 28 March 2000, the Tribunal, on 7 July 2000, handed down its decision, dated 22 June 2000, affirming the delegate’s decision.  On 3 August 2000 the applicants filed an application in this Court for a review of the Tribunal’s decision under the Migration Act 1958 (Cth).

Background Facts

2                     The first applicant is now aged 45 and is a Tamil male who was born in Jaffna, but before his arrival in Australia had been living and working in Colombo where he was the proprietor of a business called “Thilaka Stores”.  The second and third applicants are the spouse and child respectively of the first applicant.  Only the first applicant (“the applicant”) makes specific claims to refugee status, the second and third applicants applying as members of a family unit.  The applicant claimed he feared persecution for a number of reasons, including the fact that he had been stabbed during the 1983 riots in Colombo, and in 1985 he had been searched and detained for six hours for questioning over documents.  In April 1989 he was detained for a day by members of the Indian Peace Keeping Forces (“the IPKF”) who thought he was supporter of the Liberation Tigers of Tamil Eelam (“the LTTE”) and who assaulted him while he was in detention.  The applicant claimed that between 1992 and 1994 he had assisted the LTTE in transporting goods between Colombo and his home town of Jaffna.  However, as a result of the actions by the Sri Lankan forces in that area, he was forced to cease those activities in late 1995 or early 1996.  In early June 1997 the applicant agreed to supply to Yogan, the son of one of his business colleagues, goods for transport to Vavuniya.  The applicant claims that in February 1998 Yogan requested that some boxes be transported with the purchased goods.  The applicant reluctantly agreed to do so, and on 15 August 1998 one of the lorries transporting the goods was searched and the applicant was later arrested.  He claimed that he was tortured whilst in custody and kept incommunicado.  The Tribunal noted that the applicant claimed that “on 18 August his wife and uncle approached a high ranking officer and paid Rs 250,000 to secure his release.”  After his release the applicant feared for his safety, and, as the applicants had valid visas to visit relatives in Australia, they departed Sri Lanka for Australia on 23 August 1998.

Tribunal Hearing

3                     At the hearing of this matter before the Tribunal the applicant produced a number of letters in support of his claim.  One of those, dated 17 February 1999, was from Mr Joseph Pararajasingham, a Member of Parliament, and was in these terms;

“To Whom It May Concern:

Mr Kandish Sivakumaran of No:127, Old Morr Street, Colombo-12 SRI LANKA is known to me for quite some time.  He was running his own business at the above premises for number of years.

I understand that he was arrested by the EPRLF during their heyday at the North East Provincial Council when the IPKF was there, on suspicion that he belonged to a rival militant organisation.  However, his release was secured on the intervention of the President of the Jaffna Citizen Committee.

I am aware that he was taken into custody recently in Colombo for allegedly aiding and abating [sic] in transporting goods which are not permitted by the Sri Lankan Government to the north of Sri Lanka.  Subsequently he was detained by the police and was subjected to torture, and inhuman and degrading treatment.  He was, thereafter released on a condition that he should report to the Police once every week for a period of two months.  He fled the country fearing arrest, torture and persecution.  Subsequently, in the absence of Mr Sivakumaran, Assistant Manager of the former’s business establishment was taken into custody and then released on the intervention of a Lawyer on condition that he should report at the Police Station weekly until the surrender of Mr Sivakumaran.

In light of the recent developments and the turn of events, Mr Sivakumaran will not be able to move about freely and could not lead a normal life, if he returns to Sri Lanka.  Hence, I strongly recommend his application for asylum be considered in a positive sense in the country of his present domicile.”

4                     At its hearing of this matter the Tribunal asked the applicant whether he knew the author of the letter, who was referred to throughout as “Mr Joseph”.  The applicant responded, through an interpreter.  The transcript of that exchange records;

Applicant:        “He is an MP from – I could not get a solicitor for myself to get me out, so my uncle got this person – because he knows my story very well, so we got a letter from him, because he could not do anything to help me at that stage.”

Tribunal:          “Well, Mr Joseph must have been told that you were taken into custody for allegedly transporting goods to the north and that you were detained and tortured and that you were released on condition that you report to the police every week.  He must have been told that, must he not?”

Applicant:        “Yes, he knew that.”

Tribunal:          “But who has told him this.  I mean – he was not there obviously when you were at the police station.  Who has told him all these problems?”

Applicant:        “My uncle could not do much to get me out, so he contacted him and told him everything, and then – because he knew about everything that happened to me and he was able to write it down.”

Tribunal:          “But did your uncle tell him what had happened to you, is that what you are saying?”

Applicant:        “Yes.  I had written from here and it was through him that this high ranking official was approached – bribed to, yes.”

Tribunal:          “So why should I take any notice of the letter written by Mr Joseph that it contains information that he has been told about by your uncle?”

Applicant:        “He knows me, he knows what happened to me when I was detained – he knows my story.”

5                     The Tribunal rejected the applicant’s claims on a number of grounds, most of which could be reduced to a conclusion that much of the applicant’s account was implausible.  The Tribunal set out these findings in relation to the letter by Mr Joseph Pararajasingham, MP;

“The letter from Mr Joseph, an MP, sets out the claim of the applicant in relation to his arrest, his alleged mistreatment and the detention of the assistant manager.   Mr Joseph has not witnessed any of the events and only records what he has been told.  As a result the Tribunal is not prepared to attach any weight to it as a letter supporting the applicant’s claims or more particularly his claim of detention in August 1998.”

6                     Having considered the entirety of the applicant’s evidence and “country information”, the Tribunal was not satisfied that the applicants, including the second and third applicants who made no specific claims of their own, were entitled to protection from Australia pursuant to the Refugees Convention as amended by the Refugees Protocol (“the Convention”).

Grounds of Review

7                     The applicant claims that as his detention and torture in August 1998 were crucial to his claims for a protection visa, the letter from Mr Joseph Pararajasingham should have been given more weight.  In particular, Counsel for the applicant referred to the evidence before the Tribunal that he had been released from detention after paying money to “a high ranking official”, and compared that with his evidence in relation to the letter, stating that Mr Pararajasingham knew everything that had happened to him and “it was through him that this high ranking official was approached – bribed to”.  It was thus contended that the Tribunal had misunderstood the evidence before it, as it suggested that the letter from Mr Pararajasingham was mere hearsay because he had “not witnessed any of the events and only records what he has been told.”  Yet, the applicant’s evidence in relation to the high ranking official, suggested that Mr Pararajasingham had first hand knowledge of the events described by the applicant.  Accordingly, so the argument went, the Tribunal had misunderstood or misapplied the rules of evidence in relation to hearsay.  It was also submitted on behalf of the applicant that the error imputed to the Tribunal was analogous to excluding evidence of a recent complaint to rebut an allegation of invention as discussed in Papakosmas v The Queen (1999) 196 CLR 297, esp at 314 - 315.  It was contended that Mr Pararajasingham’s letter may have been a contemporaneous account if the writer had received the account from the applicant’s uncle at the time of the arrest, or alternatively, had himself been involved in securing the applicant’s release.

8                     As a result, the applicant claimed that the Tribunal’s refusal to consider Mr Pararajasingham’s letter as corroboration of the applicant’s claims, was an error of law within the meaning of s 476(1)(e) of the Act.  The applicant also submitted that, in not making a finding as to the probative value of the letter apart from excluding it as hearsay, the Tribunal had failed to set out its finding on a material question of fact as required by s 430(1)(c) of the Act so that the applicant was afforded the ground of review stipulated by s 476(1)(a).

9                     Since the present case was heard the High Court has published its judgment in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 (“Yusuf”).  In that case it was held that s 430 of the Act does not imply that the Tribunal is under an obligation to make findings as to objectively material facts.  It was further observed that a failure to comply with s 430 is unlikely to result in a non-observance of “a procedure which is to be observed in connection with the making of the decision in question”;  Yusuf, per McHugh, Gummow and Hayne JJ,at 20.  Thus, even if it could be said that the Tribunal in this case had contravened s 430, that, on the current state of the law, would no longer be a reviewable error of the type contemplated by s 476(1)(a).

10                  Counsel for the respondent Minister submitted that it was open to the Tribunal to consider what weight to place on the letter, and to decide to give no weight to it because of its hearsay nature.  In particular, reference was made to the judgment of Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 269, where their Honours noted;

“When it is a question of personal satisfaction, there can be nothing wrong with the attribution of weight.  In that context, the attribution of weight may indicate no more than that some material has assisted the decision-maker more than other material in the ascertainment of whether the requisite satisfaction has been reached.”

11                  Moreover, in Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 1705, Mansfield J pointed out, at [36];

“The process of reasoning of the Tribunal leading to a finding of fact is not reviewable under s 476(1)(e) simply because the Court may disagree with it, or may regard the weight given to a particular factor in the process of reasoning as excessive or insufficient, or even if it considers that it was illogical or unreasonable to attribute weight to that factor at all: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 per McHugh at 587 [40] (“Eshetu”). To review the Tribunal’s decision for such reasons would be to fall into the error of reviewing its decision on the merits: Eshetu, per McHugh J at 589 [56].”

12                  The ultimate question for the Tribunal to resolve was whether there was a real chance, if the applicant were to return to Sri Lanka, that he would be persecuted for reason of his actual or imputed political opinion as an LTTE supporter.  The Tribunal was required to make findings of fact about a number of matters tending for or against an affirmative answer to that ultimate question.  Those matters included the claim to have assisted Yogan by facilitating the transport of the boxes from Colombo to Vavuniya and, centrally, the applicant’s claim to have been detained and tortured between 15 and 18 August 1998. 

13                  The Tribunal in its “Findings and Reasons” was disposed to accept the applicant’s account of earlier events, including his involvement in the riots of 1983, but considered that the lapse of time and the fact that the applicant had been able to conduct his business unhindered in Colombo until 1998 militated against the chance of his being persecuted as an LTTE sympathiser if he were now to return to Sri Lanka.  The Tribunal also expressly found that the applicant had not knowingly supplied goods to the LTTE in the north of Sri Lanka between 1992 and early 1995 and had not been recorded, or believed, by the Sri Lankan authorities to have been such a supplier.  In respect of the period between 1996 and 1998, the Tribunal, at p 12 of its Reasons, made this finding;

“The applicant travelled into India and out of Sri Lanka twice in 1998.  During 1997 between September and December he was in Australia.  The last occasion he travelled into and out of the country was in July of 1998.  His willingness and ability to do this indicates to the Tribunal that at that stage he did not have a well-founded fear of persecution for a Convention reason.”

14                  As to the events of 15 August 1998, the Tribunal considered it “implausible” that the applicant would have been involved in transporting to the north goods, particularly medical supplies, in addition to his own merchandise.  It pointed out that only the driver of the truck, and not the applicant, needed to have been apprised of the clandestine carriage of additional goods.  For that and other reasons which it explained, the Tribunal did not accept that the applicant had been involved in transporting illegal goods to the north. 

15                  The Tribunal’s reasoning as to the applicant’s alleged detention between 15 and 18 August 1998 is set out in this passage from pp 13 - 14 of its decision;

“The applicant claims that despite being detained and then tortured about the lorry goods and about the documents found he was released on the payment of a bribe.  In the Tribunal’s view if the authorities imputed to him an opinion of support of the LTTE they would not have released him with the payment of a bribe.  If they thought he was implicated in transporting illegal goods to the north, the Tribunal considers that they would have charged him with an offence.  This would not necessarily make the claim Convention related, as opposed to being related to illegal activities, but the Tribunal considers that if they thought he was involved they would have followed this course.

The Tribunal also considers it implausible that the police would release the applicant on the payment of a bribe but require him to report once a week.  He had not been charged with any offence and the Tribunal considers that if the police took a bribe to release him they would not require he report as claimed. 

The Tribunal considers it implausible that the police would release the applicant on payment of a bribe, as claimed, and then follow him up again in October 1998, detaining and beating another employee.  In the Tribunal’s view if the police had some unfinished business with the applicant they would not have released him in August.  The Tribunal considers that such a claim evidenced by the letter from the employee who was allegedly detained in the applicant’s absence and the letter from the attorney, simply confirms the Tribunal’s view that the whole incident has been concocted to further the applicant’s claim for refugee status and there is no truth in any of it.

More specifically in relation to the letter from the employee dated 10 November 1998 the Tribunal considers it implausible that the writer of this letter would be detained and beaten to force him to reveal the applicant’s whereabouts.  The Tribunal considers that the employee would simply have told the police the applicant had gone to Australia.  In the Tribunal’s view it defies belief that this would have to be beaten out of the writer when the applicant had already departed and was untouchable by the police.

The letter from the attorney in addition states that the employee who had been detained was released on condition that he report once every week.  The Tribunal again finds such release on reporting conditions to be implausible.  If this employee was detained as claimed because the applicant was absent or failed to comply with the conditions of his release, the Tribunal sees no reason why the police would then have this person report once per week.  The Tribunal considers that this letter from the attorney has been written to further the applicant’s claim for refugee status and there is no truth in its contents.

The Tribunal also notes that the letter from Mr Imam indicates that the CID has taken steps to file a report against the applicant in Colombo Magistrate’s Court.  The Tribunal does not accept that such steps have been taken against the applicant.  In the Tribunal’s view such steps are not consistent with the applicant’s claim that he was released on payment of a bribe.  In addition if the authorities wanted to take such steps they would in the Tribunal’s view have taken them in August 1998.

The letter from Mr. Joseph, an M.P., sets out the claim of the applicant in relation to his arrest, his alleged mistreatment and the detention of the assistant manager.  Mr. Joseph has not witnessed any of the events and only records what he has been told.  As a result the Tribunal is not prepared to attach any weight to it as a letter supporting the applicant’s claims or more particularly his claim of detention in August 1998.”

16                  Immediately after the passage just quoted, the Tribunal set out its conclusion in relation to Mr Pararajasingham’s letter.  That conclusion is reproduced at [5] above.  Because it did not accept that the authorities had imputed to the applicant an involvement in the illegal transport of goods to the north, the Tribunal was not prepared to find that there had been a subsequent search of his premises, in the course of which documents related to human rights abuses had been found in a safe.  After referring to certain “country information”, the Tribunal dismissed the applicant’s fears of future persecution, saying, at p 16;

“Given this report that there were no reports of disappearances in Colombo during 1999, the Tribunal does not accept that there is any real chance the applicant will disappear or be extrajudicially killed as he has claimed if he returns to Colombo.  Further in the final analysis the applicant claims that he will be detained and extra judicially killed because he failed to report as claimed.  In the Tribunal’s view such a response by the security forces to the applicant failing to report is both implausible and far fetched.”

17                  The Tribunal’s reasoning in respect of the applicant’s claimed detention on 15 August 1998 is encapsulated in this passage of its reasons which appears immediately before its formal conclusion;

“As the Tribunal sees this case the applicant had no problems serious enough to amount to persecution prior to his claimed detention on 15 August 1998.  Prior to this he travelled into and out of Sri Lanka and in the Tribunal’s view did not have a well-founded fear of persecution for a Convention reason.  He had a valid visa to come to Australia which visa expired on 15 September 1998.  In such circumstances the Tribunal considers it important to carefully consider the claimed detention of 15 August 1998.  The Tribunal has done this and has also considered the supporting documents.  The Tribunal is entirely confident that this detention and the events leading up to this alleged detention did not occur as claimed.  The Tribunal considers that the applicant’s history indicates he is a successful businessman having operated in Colombo for many years and the Tribunal is satisfied that there is no real chance he has been in the past or will be in the future imputed with an opinion of support of the LTTE. The Tribunal is also satisfied that there is no real chance he will face harm serious enough to amount to persecution should he now return.”

18                  It will be seen from the brief review of the Tribunal’s reasons which I have just undertaken that its denying any weight to Mr Pararajasingham’s letter was only one of the reasons why the Tribunal declined to find that the applicant had been detained, as he claimed, on 15 August 1998.  It was sufficient for the Tribunal to indicate that it rejected, or attached no weight to, the evidence contained in the letter.  It was not obliged to “give a line-by-line refutation of that evidence” or to give “the sub-set of reasons” why it rejected it;  see Re Minister for Immigration and Multicultural Affairs;  Ex parte Durairajasingham (2000) 74 ALJR 405 at 416 - 417.

19                  In fact, the Tribunal did give a reason for attaching no weight to Mr Pararajasingham’s letter, namely that “Mr Joseph has not witnessed any of the events and only records what he has been told.”  It may be that the Tribunal was mistaken in its finding of fact that Mr Pararajasingham had not witnessed the events surrounding the applicant’s alleged detention.  Whether he had witnessed them turned on a construction of the letter itself which was, at best ambiguous and, on the applicant’s assertion in his oral evidence that “he (Pararajasingham) knows what happened to me when I was detained - he knows my story.”  Assuming in the applicant’s favour that the evidence to which I have just referred was capable of establishing that Mr Pararajasingham had direct, contemporaneous knowledge of the applicant’s detention and release after payment of a bribe, it was a question of fact for the Tribunal whether it had that effect. 

20                  Occasionally, a statement by an administrative tribunal of its reasons for rejecting a piece of evidence may disclose an error of law.  For example, if the Tribunal to which, as in the present case, review of a delegate’s decision is entrusted by the Act, were to consider itself bound by a particular rule of evidence to exclude some matter concededly relevant to what it had to decide, that would be to misapply s 420(2) of the Act, which provides;

“The Tribunal, in reviewing a decision:

(a)       is not bound by technicalities, legal forms or rules of evidence;  and

(b)       must act according to substantial justice and the merits of the case.”

However, in the present case, the Tribunal did not exclude consideration of Mr Pararajasingham’s letter because of the application of a rule of evidence.  Rather, it declined to attach any weight to it because it considered that the writer’s “awareness” or knowledge of the applicant’s alleged detention and subsequent release had been derived after the event either from the applicant himself or his uncle.  It may be, as Mr Niall of Counsel for the applicant persuasively argued, that the Tribunal failed to appreciate the possibility that Mr Pararajasingham had been contemporaneously involved by the applicant’s uncle in efforts to procure his release, or, at least, had been contemporaneously told by the uncle of what had befallen the applicant.  However, as I have already pointed out, whether the Tribunal should have taken account of that possibility was a question of fact for it.  Its failure to do so, however illogical or inadequately explained, was not an error of law giving rise to a ground of judicial review;  see eg.  Minister for Immigration and Multicultural Affairs v Eshutu (1999) 197 CLR 611 per Gleeson CJ and McHugh J at 626.

21                  I should add parenthetically that the conclusion that Mr Pararajasingham did not have direct involvement in, or receive a contemporaneous account of, the applicant’s alleged detention seems to be the preferable one on the state of the evidence before the Tribunal.  For one thing, his letter makes no distinction between the fact of the detention and subsequent or ancillary matters such as the applicant’s release on reporting conditions and the arrest of the applicant’s assistant manager.  Even if Mr Pararajasingham had been involved in attempts on or about 18 August 1998 to procure the applicant’s release, or had then been told of his detention, his knowledge of those matters would have been different in kind and immediacy from his knowledge of the later matters to which I have just referred.  The failure in the letter to distinguish between the arrest and release on the one hand and the other matters is therefore significant. 

Conclusion

22                  It will be apparent from the foregoing reasons that the principles affirmed by the High Court in Yusuf have precluded the present applicant from successfully impugning the Tribunal for not setting out a finding on a material question of fact and thereby failing to observe a procedure required by the Act to be observed in connection with the making of its decision.  Moreover, if the Tribunal had been mistaken in denying any probative value to Mr Pararajasingham’s letter, that mistake was one of fact.  Accordingly, the decision did not involve an error of law so as to be amenable to review under s 476(1)(e) of the Act.  As the applicants have failed to sustain either limb of their attack on the Tribunal’s decision, the application must be dismissed with costs.

Associate:

Dated:              25 October 2001