FEDERAL COURT OF AUSTRALIA

Rasick v Minister for Immigration & Multicultural Affairs [2002] FCA 975

Migration Act 1958, ss 420, 430(1)(c), 476(1)(a)

Minister for Immigration and Ethnic Affairs v Eshetu (1999) 197 CLR 611 applied

Yilan v Minister for Immigration and Ethnic Affairs (1999) 55 ALD 600 applied

Minister for Immigration and Ethnic Affairs v Anthonypillai (2001) 106 FCR 426 applied

Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 applied

Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 cited

Luu v Renevier (1989) 91 ALR 39 cited

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

Pollocks v Minister for Immigration and Multicultural Affairs [2001] FCA 689 applied

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

Yakubu v Minister for Immigration and Multicultural Affairs [2002] FCA 241 applied

Zyfi v Minister for Immigration and Multicultural Affairs [2001] FCA 978 applied

Minister for Immigration and Multicultural Affairs v Al‑Miahi (2001) 65 ALD 141 applied

MH RASICK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 102 OF 2000

SUNDBERG J

7 AUGUST 2002

MELBOURNE

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the respondent’s costs of the application.

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

REASONS FOR JUDGMENT

BACKGROUND

1                     The applicant is a citizen of Sri Lanka who arrived in Australia on 4 March 1997.  On 21 March 1997 he lodged an application for a protection visa.  On 18 June 1997 the application was refused, and the applicant sought review of the refusal by the Refugee Review Tribunal.  The applicant’s claims are contained in written submissions, an interview with a departmental officer, and oral evidence before the Tribunal.  They can be summarised as follows:

·               He is a Tamil speaking Muslim from Mannar, and between 1991 and 1996 was the proprietor of a retail shop there.

·               He has been a supporter of the Liberation Tigers of Tamil Eelam (LTTE) since 1987.

·               In November 1988, while the Indian Peace Keeping Forces were in Sri Lanka, he was arrested by the Eelam People’s Revolutionary Liberation Front (EPRLF) and held in a camp and tortured with a view to causing him to disclose the locations of LTTE cadres and camps, which he was unable to do because he was not involved in combat activities.

·               In mid 1990 he was forced to relocate to Kalpitti refugee camp because of the LTTE’s order that Muslims leave Mannar and other northern areas.

·               In December 1990 he was allowed by the LTTE to return to Mannar Island.

·               He often had to travel to Kalpitty to obtain materials for his business, and was helped to do this by the LTTE to whom he paid tax.

·               After the change of government in 1994 he was instructed by the LTTE to bring them batteries and cells, and also transported out‑board motor parts for the sea‑tiger units.

·               In December 1995 he was arrested by the Navy authorities at Kalpitty jetty on the ground that he had transported goods for the LTTE, detained and kept incommunicado for five‑months in Kalpitty and later Colombo, and questioned about his knowledge of LTTE identities in Colombo.

·               In his statement he said that after his release he remained in Kalpitty until his wife arrived there after the birth of his second child, though at the hearing he said he did not see his wife again, and had never seen his second child.

·               He arranged for a passport in August 1996, and in September went to Colombo.  In his statement he said while in Colombo the Eelam People’s Democratic Party (EPDP), a Tamil Group supporting the government, raided the house in which he was staying and demanded that he disclose the locations at which LTTE uniforms were made, though at the hearing he said he had been detained by the EPDP while walking down the street.

TRIBUNAL’S FINDINGS

2                     The Tribunal accepted that the applicant was a Tamil speaking Muslim from the Mannar region of Sri Lanka.  It said he “may” have been arrested by the EPRLF when the Indian Peace Keeping Force was in Sri Lanka.  But since the Force left at the beginning of 1990 and the applicant did not claim any problems with the EPRLF thereafter, the Tribunal considered any such arrest was “remote in time”.  It said that while the applicant may have been a supporter of the LTTE in 1987 and 1988, it did not find it plausible that he continued to support the LTTE after he was forced by them to relocate and live in a refugee camp in 1990.  The Tribunal said it was “confirmed in this view” by country information showing that the description “Muslim Tamil” is highly unusual, because Muslims are seen, and see themselves, as a distinct ethnic group.  It quoted from Tamils in Colombo: Letter from Lawyers for Human Rights and Development (December 1995):

“I am afraid there are no Tamil Muslims.  Though technically any person who embraces Islam is a Muslim, in this country Muslims are a separate ethnic entity comprising Moors, Malays etc.  Muslims in the north were ordered to quit Jaffna Peninsula by the LTTE and the LTTE have also attacked Muslim border villages killing a number of Muslim families.  Therefore LTTE has become the common enemy of the government and the Muslims.  Muslims have not been involved in any known terrorist activity and hence are considered safe.  Muslims are safe and free to be in any part of the country under government control.”

Accordingly, said the Tribunal, it found it implausible that the applicant would be transporting goods for the LTTE in 1994 and 1995.

3                     The Tribunal did not find the applicant to be a credible witness.  It said that having listened to his evidence it did not believe he had been detained by the Navy for five months.  It noted that he had given conflicting stories as to whether he saw his wife after the birth of their second child, and about the circumstances in which he had been detained by the EPDP.  It considered that the applicant would have remembered where he was when he was kidnapped if his claim to have been kidnapped were true.  The Tribunal thought this indicated a lack of general credibility, and found that his alleged detention by the EDPD was fabricated to further his claim for refugee status and to avoid any suggestion that he would be safe in Colombo.

4                     The Tribunal noted the information set out in par 2 that Muslims are safe in any government held area, a fact that the applicant’s adviser accepted as accurate.  The Tribunal was accordingly satisfied that there was no real chance that the applicant would face persecution should he return to any government controlled area.  It concluded that there was no real chance that he would face persecution should he return to Sri Lanka.  The applicant seeks review of that decision under Part 8 of the Migration Act 1958 (“the Act”).

GROUNDS OF REVIEW

(a)        Failure to act in accordance with substantial justice and the merits

5                     The applicant had two complaints.  The first was in the Tribunal’s approach to the applicant’s credibility which, it was said, caused it to reach conclusions “not in accordance with the scope and nature of the obligations imposed upon the respondent”.  The second was the “failure to consider the probability and/or possibility that its failure to obtain [information relating to the applicant’s claimed detention by the Navy] may have placed the applicant differentially at risk for a convention reason”.  These complaints seek to rely on s 420 of the Act so as to support the ground of review as to requisite procedures set out in s 476(1)(a).  Section 420 does not impose a procedure for the purposes of s 476(1)(a): Minister for Immigration and Ethnic Affairs v Eshetu (1999) 197 CLR 611; Yilan v Minister for Immigration and Ethnic Affairs (1999) 55 ALD 600.  In any event there is nothing in either of the complaints.  As to the first, the Tribunal’s approach to credibility may well have caused it to reach conclusions adverse to the applicant’s case.  However, absent some impropriety in its assessment of credit, these conclusions cannot properly be described as “not in accordance with the scope and nature” of the respondent’s obligations.  The Tribunal’s approach to the applicant’s credit was unexceptionable.  It said it had regard to his demeanour, an advantage not available to the Court.  It gave reasons for disbelieving aspects of his account.  Those reasons explain its conclusion on credit, and can reasonably have caused it to reach that conclusion.  As to the second complaint, see par 7 below.

(b)        Failing to take written submissions into account

6                     It was claimed that the Tribunal “failed to take into account and completely disregarded” the written submissions of the applicant’s legal adviser.  This is said to be a failure to follow a prescribed procedure under the Act.  Assuming that it is, the complaint is baseless.  The Tribunal referred three times to the written submission, and relied on it for the statement that the applicant’s adviser accepted as correct the information that Muslims are safe in any government held area.

(c)        Failure to make enquiries about claimed detention by Navy

7                     The Tribunal did not believe the applicant’s claim that in December 1995 he was arrested by the Navy authorities and detained on the ground that he had transported goods for the LTTE.  The complaint is that the Tribunal failed to make any enquiries or obtain any information about his claim.  While the Tribunal has power to make enquiries and obtain information, it is not ordinarily under a duty to exercise this power: Minister for Immigration and Ethnic Affairs v Anthonypillai (2001) 106 FCR 426 at pars 28, 86; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 321.  There is nothing in the material before the Tribunal that indicated the existence of any particular information that would have been readily available to the Tribunal and was centrally relevant to the claim.  See Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170 and Luu v Renevier (1989) 91 ALR 39 at 48‑50.  The applicant’s case in this respect rests on assertion only.

(d)        Failure to set out reasons

8                     The applicant claims that the Tribunal failed to comply with required procedures (s 476(1)(a)) because it did not set out any reasons for its refusal to accept that he had been detained by the Navy in December 1995.  Section 430(1)(c) obliges the Tribunal to set out its findings on the questions of fact that it considers material to its decision and its reasons for reaching that decision: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at pars 34, 68, 75, 217.  It is not obliged to expose its reasoning process for making particular findings: Pollocks v Minister for Immigration and Multicultural Affairs [2001] FCA 689 at par 35.  Yet that is what this claim seeks to require.  It is not an available ground of review.  In any event the Tribunal did give reasons for its rejection of the applicant’s story.  It said it did not believe him.  It emphasised that its disbelief was based on its observation of his demeanour – “having listened to the applicant’s evidence …”.  Further, the applicant claimed to have been arrested because he had transported goods for the LTTE.  As a reason additional to demeanour, the Tribunal said it was implausible that the applicant would be transporting goods for the LTTE.  In support of this it referred to the letter quoted in par 2, in which it was said that the LTTE has become the common enemy of the government and the Muslims.  There is no substance in this complaint.

(e)        Illogical reasoning

9                     The applicant contends that the finding that it was implausible that the applicant would be transporting goods for the LTTE in 1994 and 1995 is “tainted with error and flawed in logic even assuming that the applicant did not continue to support the LTTE after 1990”.  There is no basis for this complaint.  As indicated in par 8, the finding was based on the letter quoted in par 2.  That information may itself have justified the finding.  At the very least the Tribunal was entitled to infer from it that the applicant’s story was implausible.  There is no illogicality here.  That is especially so when, as the formulation of the complaint acknowledges, the Tribunal had earlier found it was implausible that the applicant continued to support the LTTE after being forcibly relocated to a refugee camp.  This finding was not challenged by the applicant.  In any event, the Tribunal went on to find, based on the applicant’s demeanour in giving his evidence, that it did not believe his account of arrest by the Navy.  It was in connection with this alleged incident that the Tribunal made the implausibility finding sought to be impugned.

(f)        Errors of law

10                  The applicant repeats the complaints dealt with in (a) to (e), claiming they constitute errors of law.  For the reasons given above, no such errors are made out.

11                  Then it is claimed that the Tribunal acted without jurisdiction in that it misinterpreted the expression “for reasons of race … or political opinion” in the definition of “refugee” in Art 1 of the Convention in connection with the applicant’s claim to fear persecution as a young Tamil Muslim male.  It was not explained wherein the error lay, and having carefully read the Tribunal’s reasons I can identify no error in its treatment of the expression.

12                  The next grievance is that the Tribunal applied a higher threshold than is warranted by the “well‑founded fear” test in its treatment of whether the applicant would be differentially at risk of persecution as a young Tamil Muslim male.  There is nothing in the Tribunal’s reasons that supports this claim.  The Tribunal correctly set out the applicable law on “well‑founded fear”, and acknowledged that a person can have such a fear even though the possibility of the persecution occurring is “well below 50 per cent”.  The Tribunal accepted country information that Muslims are safe in any government‑controlled areas – a proposition with which the applicant’s adviser agreed.  It was entitled on that information to find that there was no real chance of persecution were the applicant to return to a government controlled area.

13                  The next error of law asserted is that the Tribunal did not consider whether its findings of fact adverse to the respondent may have been wrong.  The Tribunal’s conclusion were reached with such assurance that there was no need for it to ask that question.  See Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 and Yakubu v Minister for Immigration and Multicultural Affairs [2002] FCA 241.

14                  The final error of law asserted is that “the evidence indicated a real ground for believing that the applicant is at risk of persecution … and that a fear of persecution may be well founded even though the evidence does not show that persecution is more likely than not to eventuate”.  The first part of this claim seeks unavailable merits review.  The Tribunal acknowledged the second part of the claim.  See par 12 above – “well below 50 per cent”.

(g)        No evidence

15                  The particulars merely refer to those of other grounds of review.  Neither of the limbs of s 476(4) is made out.  Even if one or other had been, this ground would not be established because there was evidence to justify the making of the decision.  See Zyfi v Minister for Immigration and Multicultural Affairs [2001] FCA 978 and Minister for Immigration and Multicultural Affairs v Al‑Miahi (2001) 65 ALD 141.  Reference should be made to the evidence summarised in pars 2 to 4.

(h)        Improper exercise of power

16                  The applicant asserts that the Tribunal exercised a discretionary power without having regard to the merits of the case.  The only guidance offered as to the basis of this complaint is a reference back to the “procedures” ground of review, presumably the “substantial justice and merits” aspect thereof.  Since all those grounds have been rejected, and nothing new is propounded under this head, this assertion must be rejected.

CONCLUSION

17                  The application must be dismissed with costs.

Associate:

Dated:              7 August 2002