FEDERAL COURT OF AUSTRALIA

Visvalingam v Minister for Immigration & Multicultural Affairs [2001] FCA 1790

MIGRATION LAW – Protection visa – Appeal from primary judge’s decision affirming decision by the Refugee Review Tribunal – Whether error of law - Whether Refugee Review Tribunal addressed the issue of persecution on the basis of being a “Tamil from the north of Sri Lanka”

BALALINGAM APPAKUTTI VISVALINGAM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 994 of 2001

O’LOUGHLIN, WHITLAM & MARSHALL JJ

14 DECEMBER 2001

SYDNEY

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal is dismissed with costs.

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

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT:

1                     On 30 November 2001 we ordered that this appeal be dismissed with costs.  These are our reasons for making that order.

2                     The judgment appealed from was given on 8 June 2001.  The primary judge dismissed the appellant’s application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 27 November 2000.  The relevant RRT decision affirmed a decision of a delegate of the respondent that the appellant was not entitled to a protection visa.

3                     The relevant factual background, as described by the primary judge, is not in dispute.  His Honour said (at [3]-[9]):

“The Applicant is a Sri Lankan citizen of Tamil ethnicity who was born in Colombo in 1955. He is married with one daughter, both of whom remain resident in Sri Lanka.  The Applicant has spent almost twenty years of the last twenty-one years of his life residing outside Sri Lanka.  The Applicant obtained a transit visa for Australia in Colombo on 14 August 1995, to enable him to visit his sister and brother-in-law in Papua New Guinea.  On his return to Sri Lanka, he entered Australia on 6 October 1995 as the holder of a three day transit visa. On 11 October 1995, he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs.  When the matter was before the RRT, he claimed to have a well-founded fear of persecution by the Sri Lankan Government (and its agents), on the basis of his race and imputed political opinion in support of Liberation Tigers of Tamil Eelam (LTTE).  He also claimed fear of persecution by the LTTE for reasons of race.

Some of the Applicant’s claims as recorded by the RRT in its Decision were initially set out in a statutory declaration made on 28 February 1996.  The contents of such statutory declaration are set out in the RRT Decision and may be relevantly summarised as follows.  The basis for the Applicant’s claims commence with events that occurred back in 1977, and continued through to 1995. In 1977, the Applicant asserted that both he and his father were injured by Sinhalese mobs during race riots in Colombo.  The Applicant further asserted that many years later, during a visit to Sri Lanka in 1989, he was taken to a police station on suspicion of being a member of the LTTE.  During the time he was detained by the Police, he claimed he was kept in a cell for four days with sixteen other persons where he was mistreated, and his life was threatened. It was not until his father-in-law persuaded a friend in the Police Force to use his influence to assist the Applicant that the Applicant was released from the police station. Following his release, the Applicant returned to Saudi Arabia, leaving his wife behind in Sri Lanka.

The Applicant did not return to Sri Lanka until May 1991.  He claimed that when militant groups found out that he was returning to Sri Lanka, they threatened his wife and demanded some $1.5 million rupees.  He further claimed that his wife gave her jewellery to such militant groups.

In May 1991, he resided in a lodge in Colombo that was raided one night by the police.  All the men residing there (including the Applicant) were taken to the police station.  During such time of internment, the Applicant claimed that he was interrogated as to why he had come back to Colombo.  He was also accused of being a member of the LTTE. The Applicant further claimed that he was assaulted by the Police on four occasions, and was finally released after six days when his uncle paid the Police a bribe.  Prior to his release, the Applicant asserted that the officer in charge took and retained his finger prints.  Shortly after this event, the Applicant flew to Italy using a visa granted on 1 May 1991.  The Applicant did not return to Sri Lanka until after peace talks between the Government and the LTTE commenced in early 1995.

When the Applicant returned to Sri Lanka on 8 March 1995, a neighbour informed him that he witnessed the Applicant’s brother being taken by men in civilian clothes who were driving a white van, and that he had not seen the Applicant’s brother since that occasion.  After the Applicant placed an advertisement in a Tamil newspaper, he claimed that the Police came to the place where he was residing wearing civilian dress, and assaulted him, thereby breaking two of his teeth.  They told him to place an advertisement in a Tamil newspaper to the effect that his brother had been found.  When the Applicant refused to do this, he asserted the Police took him to the Police Station and held him there for two weeks.  During such time, he was again assaulted and threatened with loss of his life.

The Applicant was released from the Police station after members of his family persuaded a family friend, who was a Chief Inspector of Police, to intervene on his behalf. After his release, the Chief Inspector told the Applicant that Tamil members of the Parliament were organising an investigation into missing persons, and that the Applicant would be called as a witness.  The Chief Inspector then advised the Applicant to leave Colombo, and to also leave the country, because if he appeared as a witness, ‘they would finish me, they would try to kill all witnesses’.  The Applicant left Colombo and went to Batticoloa.  Upon the approval of his visa for Papua New Guinea (where his sister lived), he travelled back to Colombo, whereupon he made his way to Australia via Singapore and Papua New Guinea.

In addition to the claims set out in the statutory declaration of the Applicant, the RRT recorded a further set of claims made by the Applicant when he appeared before the Tribunal.  Such additional claims principally were to the effect the Applicant’s youngest brother was a high ranking officer of the LTTE, and that it was for this reason that the Applicant and his family had been targeted by the authorities.  The Applicant also maintained that in January 1998, his wife disappeared following upon army activity in Batticoloa.  It was claimed by the Applicant that this occurred as a result of her refusal to pay extortion demands made by the LTTE.”

4                     The primary judge noted that the RRT found the appellant’s claims to be fabricated and that it observed that none of them were corroborated by independent evidence.  His Honour then summarized the RRT’s specific findings and stated its conclusions that:

“The [appellant] has never experienced persecution for a Convention reason in Sri Lanka. He is of no interest to the authorities nor the LTTE.  He does not have a well-founded fear of persecution for a Convention reason if he were to return to Sri Lanka.”

5                     It was contended before the primary judge that the RRT had failed to address whether the appellant had a well-founded fear of persecution for the reason of his race.  His Honour rejected that contention. He held that the RRT considered the appellant’s claim that he had a well-founded fear of persecution for the reason of his race and rejected that claim.  We agree, with respect, with the primary judge’s conclusion on that topic.

6                     In its reasons for decision the RRT identified the appellant’s claims as follows:

“From his protection visa application and statutory declaration, it appears that the applicant claims to fear persecution by the Sri Lankan government or its agents on the basis of his Tamil race and an imputed political opinion in support of the Liberation Tigers of Tamil Eelam. He also appears to claim to fear persecution by the LTTE on the basis of his Tamil race – such persecution being manifest by extortion and demands that he join the LTTE.”

7                     The alleged factual basis for the claims was not accepted by the RRT.  In essence the RRT found that the applicant’s claims were “a complete fabrication”, because of a lack of satisfaction as to the truth of the facts asserted by the appellant.  The RRT noted that the appellant did not provide any evidence in corroboration of his claims.  Additionally, the RRT did not accept that, if his claims were true, he would voluntarily have returned to Sri Lanka in March 1995 after four years’ residence in Italy. 

8                     In submissions made to the RRT on his behalf by his solicitors, the appellant was said to have a well founded fear of persecution by reason of his race “because he is a Tamil who is suspected thereby to have assisted the LTTE” and that he “does not claim to be anything other than a Tamil from the north of Sri Lanka.”  This claim  was, in our view, plainly enough identified by the RRT in the passage reproduced in [6] above.  The RRT found no independent or credible evidence to support it.  Its finding that the appellant had not experienced persecution for a Convention reason addressed this claim.

9                     The primary judge said  at [21]:

“In my opinion, no error of law was committed on the part of the RRT in the present case.  While it may be said that the RRT’s conclusion in [19] above could have included ‘for reasons of race’ instead of ‘for a convention reason’, it must be emphasised that when reviewing administrative decision-making, the RRT’s reasons should normally be read beneficially.  The reasons of an administrative decision-maker are designed and intended to inform, and are not to be scrutinised ‘minutely and finely with an eye keenly attuned to the perception of error’: Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and W168/00A [Minister for Immigration and Multicultural Affairs [2001] FCA 538] at [31] per Carr J.  Having regard to the factual contexts in which the RRT made its decision, and its conclusions referred to in [11] above, it necessarily followed that the RRT was not satisfied that there was any real risk that either the Sri Lankan authorities or the LTTE would persecute the Applicant on his return to his country for reasons of his race: see W168/00A (supra) at [14] per Lee J.  Furthermore, I do not read the RRT’s reasons for decision as involving a failure to address the Applicant’s claim of a well-founded fear of persecution simply because he is a Tamil.  The RRT was plainly aware of the Applicant’s Tamil ethnicity throughout the course of consideration of claims, and did not attempt to divorce his ethnicity from what I might describe as his personal claims.  Consideration of fear of persecution for reason of race inherently takes place in the context of an applicant’s personal circumstances.  It is incorrect to postulate that the RRT ought to have considered might be described as a form of ‘globalised’ question, namely, whether being a Tamil per se gives rise to a well-founded fear.  It was incorrect for the Applicant to contend that the RRT did not assess whether the Applicant had a well-founded fear of persecution independently of his so-called personal claims: see Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 415 per Gaudron J.”  (Emphasis supplied.)

10                  It was contended again before us by counsel for the appellant that despite the rejection of his personal claims, the RRT did not address the appellant’s claim to have a well founded fear of persecution because of his race.  We reject that contention for the reasons given by the primary judge.  None of pars (b), (c) or (e) of s 476(1) of the Migration Act 1958 was arguably thus engaged in the ways suggested by the majority in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 75 ALJR 1105 at 1119-1121.

Associate:

Dated:              13 December 2001