FEDERAL COURT OF AUSTRALIA

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 372

NAHI & ORS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 2 of 2003

STONE J

28 APRIL 2003

SYDNEY

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                     The applicants are Sri Lankan nationals of Tamil ethnicity who entered Australia in April 1999 on visitors visas and on 24 May 1999 applied for protection visas (Class AZ) under the Migration Act 1958 (Cth) (‘Migration Act’).  That application was rejected by a delegate of the respondent on 10 August 1999 and on 6 September 1999 the applicants applied for review of the delegate’s decision by the Refugee Review Tribunal (‘Tribunal’).  On 13 November 2002 the Tribunal affirmed the delegate’s decision not to grant the applicants protection visas.  The applicants have  applied under s 39B of the Judiciary Act 1903 (Cth) for writs of certiorari, prohibition and mandamus to be directed to the Tribunal in respect of its decision. 

2                     Only the first applicant (‘applicant’) made a claim to be a person to whom Australia owed protection obligations under the Refugee Convention as amended by the Refugees Protocol (‘Convention’).  The second and third applicants are the applicant’s wife and son who applied for protection visas as members of the same ‘family unit’ as the applicant. 

3                     The account that the applicant gave to the Tribunal in support of his claim to have a well-founded fear of persecution should he be returned to Sri Lanka is long and complicated.  I do not propose to describe it in detail.  For present purposes it is sufficient to note the core elements of the claim.  The applicant, who is trained as a civil engineer, claims that when he was working for a government corporation he was pressured by the Liberation Tigers of Tamil Eelam (‘LTTE’) to allow them to take materials from the building sites he controlled.  This continued intermittently over a significant period.  He claimed that in 1992 he was abducted by the LTTE who threatened to shoot him unless he signed blank documents which the LTTE intended to use to commandeer cement and generators.  The applicant feared reprisals by the government and by the LTTE and in 1993 he left Sri Lanka and obtained employment in Brunei.  He made two short visits to Sri Lanka in 1995 and 1997.  In 1998 the applicants were granted Australian visas however, when his employment in Brunei came to an end the applicant returned to Sri Lanka to await details of further employment.  He claimed to have been arrested in March 1999 along with other Tamils and that his brother had obtained his release by bribing the police. 

4                     The Tribunal rejected the applicant’s claims because it did not accept his account of his experiences in Sri Lanka.  It found many aspects of his claims implausible or contradictory.  The following extract from the Tribunal’s reasons is an example:

‘The Applicant claims that from 1984 to 1993 goods such as cement and generators were stolen from the site which he controlled for a Sri Lankan government-owned corporation, the State Development and Construction Corporation.  He claims that the corporation was aware of these thefts because he says they sent security guards to look after the goods.  Nevertheless the Applicant says that the corporation took no action against him until 1993 and that even then they allowed him to go and to leave the country.  As I put to the Applicant, even setting aside the fact that he claims that these thefts were committed by the LTTE, which was fighting against the Government, I consider that the fact that these thefts were carried out at the site under his control would have been enough to make him the subject of a criminal investigation.

The Applicant further claims that the  police came to look for him within two weeks of his departure from Sri Lanka in 1993.  He claims that the police arrested all the other Tamils working for the corporation and tortured and killed them.  Nevertheless he claims that he was able to travel in and out of Sri Lanka in 1995, 1997 and 1999 because he says that the problems which occurred in Batticaloa would not have been known in Colombo and because on each occasion his second eldest brother, who holds a good position in the Department of Health in Batticaloa, came to the airport in Colombo to meet him.  The Applicant claims that on the last occasion on which he visited Colombo, in 1999, he was actually arrested twice but on neither occasion did the police make the connection with the criminal investigation into the theft of goods from the site which he controlled while working for the State Development and Construction Corporation  between 1984 and 1993.

The Applicant claims that a Muslim police officer who came from the Batticaloa district made the connection between him and his eldest brother who was detained in Batticaloa in 1984.  He suggests that this officer told him he should leave the country before the officers found out about his eldest brother. As I indicated to the Applicant in the course of the hearing before me, I find it difficult to reconcile the suggestion that he would have had problems as a result of his connection with his eldest brother with his evidence that his second eldest brother holds a good position in a Sri Lankan Government Department in Batticaloa.  As I put it to the Applicant, this family connection would not appear to have held his brother back.  The Applicant also claimed that his second eldest brother had had problems with the LTTE because the LTTE regarded him as having betrayed them as a result of the other workers at the site having been arrested.  He said that his brother was unable to leave Batticaloa but, as I put to him, if the LTTE had suspected him they would have suspected him in 1993, when he supposedly fled the country.  As I noted, the Applicant’s evidence is that his brother came to Colombo to help him in 1995, 1997 and 1999.  The Applicant said that his brother had been able to come to Colombo for official matters.’

5                     The Tribunal did not believe that a person who genuinely feared persecution as the applicant claimed would have returned to Sri Lanka in 1995, 1997 or 1999.  In particular, the Tribunal noted that when the applicant returned in 1999 he and his family already held visas allowing them to travel to Australia and the USA.  The Tribunal concluded:

‘H]aving regard to the view I have formed of the Applicant’s credibility, I do not accept that the LTTE stole goods such as cement and generators from the site under the Applicant’s control between 1984 and 1993.  I do not accept that the Applicant was ever the subject of a criminal investigation, either as a result of these claimed thefts or because the LTTE compelled him to sign blank pieces of paper which the LTTE used to have goods such as cement and generators delivered to them.  I do not accept that the Applicant was abducted by the LTTE towards the end of 1992 and compelled to sign blank pieces of paper. I do not accept that the Applicant would not have been arrested if his involvement in these thefts from the corporation had come to light, as he says, nor that he would have been allowed to leave the country in these circumstances.  Equally, I do not accept that the Applicant would have travelled in and out of Sri Lanka on no less than three occasions after this, in 1995, 1997 and 1999, if the threat of a criminal investigation had been hanging over him as he claims.

Having regard to the view I have formed of the Applicant’s credibility, I do not accept his account of his two arrests in Colombo in February and March 1999.  For reasons given above I do not accept that the Applicant would have been of any greater interest to the police by reason of his relationship with his eldest brother, who he says was wrongfully arrested and imprisoned for three years in 1984, than his second eldest brother, who he says at all material times held a good position in the Department of Health in Batticaloa.  Moreover, although the Applicant claims that he was told to leave the country by the Muslim police officer who he claims to have bribed to obtain his release in February 1999, he remained in Sri Lanka with his wife and child until April 1999.  I consider that the Applicant’s entire account of the problems he claims to have experienced in Sri Lanka is a fabrication. I do not accept that the Applicant was ever arrested by the authorities in Sri Lanka nor that he has ever been of any interest to the Sri Lankan authorities.  I likewise do not accept that he has ever been of interest to the LTTE.  I do not accept that he ever assisted the LTTE nor that the LTTE believes that he betrayed the LTTE.’

6                     The Tribunal nevertheless considered whether the applicant would be likely to suffer persecution on return to Sri Lanka because he is a Tamil from the Eastern Province of Sri Lanka.  In this regard the Tribunal considered independent country evidence as well as the fact that the applicant and his second eldest brother had both held responsible positions in that area.  It concluded there was not a real chance that any of the applicants would be persecuted and therefore it could not be satisfied that Australia owed protection obligations to the applicants.  The Tribunal therefore confirmed the decision not to grant them protection visas.

7                     In his application to this Court for a review of the Tribunal’s decision the applicant invokes the jurisdiction conferred by s 39B(1) of the Judiciary Act.  In support of his application the applicant, who represented himself, provided some four pages of written submissions.  These submissions show some appreciation of the fact that the applicant must show jurisdictional error on the part of the Tribunal if he is to obtain the relief he seeks.  This much was established in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24. 

8                     While there may be some doubt about the boundaries of jurisdictional error as referred to by the High Court, the difficulty confronting the applicant is that he has not, either in his written submissions or before me today, identified anything in the Tribunal’s reasons that would support his submissions.  He alleges that there was procedural unfairness and hints at bias on the part of the Tribunal.  His objections however seem to be with the Tribunal’s conclusions as to the merits of his claim.  He submitted before me today that the Tribunal was wrong in concluding that there was no reasonably foreseeable chance of future persecution if the applicants were to be returned to Sri Lanka  because, as he said, one cannot predict the future.

9                     His other submissions were in similar vein and amounted to an invitation to the Court to engage in merits review.  As I explained to the applicant at some length this is not within the jurisdiction of the Court.  Conscious that the applicant is not legally represented, I have read the Tribunal’s reasons with some care.  In my opinion the Tribunal explained clearly and fully why it did not believe the applicant and, as the extracts from its reasons quoted above show, it identified the inconsistencies and contradictions that led it to that view.

10                  I can find nothing in the Tribunal’s reasons that would support a claim of jurisdictional error and for this reason the application must be dismissed with costs.

Associate: 

Dated:              29 April 2003