FEDERAL COURT OF AUSTRALIA

Applicant M88/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 427

MIGRATION – whether the Refugee Review Tribunal erred in its consideration of whether the applicant had a well founded fear of persecution – error of logic – whether the Refugee Review Tribunal failed to comply with s424A – denial of procedural fairness

Migration Act 1958 (Cth), s424A

Gamaethige v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 424, applied

VGAO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 68, cited

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 577, followed

VDAU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 363, followed

VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74, applied

APPLICANT M88/2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V688 OF 2002

MARSHALL J

MELBOURNE

30 APRIL 2003

THE COURT ORDERS THAT:

1.      The application be dismissed.

2.      The applicant pay the respondent’s costs, including reserved 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 proceeding, the subject of these reasons for judgment, was remitted to this Court by the High Court of Australia on 30 July 2002.  In the High Court the applicant applied for writs of prohibition, certiorari and mandamus, as well as injunction directed to the respondent Minister in respect of a decision of the Refugee Review Tribunal (“the RRT”), which refused the applicant a protection visa.

2                     In the draft order nisi prepared for the High Court proceeding the applicant alleged that the RRT made the following errors of law:

·        it erred in not considering as “persecution” the beating of the applicant upon his arrest in 1996;

·        it failed to consider whether the applicant had a well founded fear of persecution by reason of future ill-treatment consequent upon his previous detention and beating;

·        it failed to consider the well founded fear issue raised above in the context of the applicant being a Tamil in Sri Lanka;

·        it failed to comply with s424A of the Migration Act 1958 (Cth) (“the Act”) in relation to information concerning changes to the political situation in Sri Lanka, which the RRT considered as part of its reasons for rejecting the application;

·        it denied the applicant natural justice or procedural fairness by failing to give him a proper opportunity to respond to material which the RRT considered to be adverse to his claim.

3                     On 3 March 2003 the applicant filed in this Court a document entitled “Particulars of Application under the Judiciary Act 1903 and the Migration Act 1958”. In addition to the matters raised in the draft order nisi the applicant, in that document, asserted that the RRT acted without jurisdiction by “proceeding in defiance of logic”.

4                     Also on 3 March 2003, the applicant filed comprehensive contentions of fact and law. Those contentions raised the following issues:

·        whether the RRT applied the wrong test with respect to the meaning of “persecution” and the assessment of a well founded fear of persecution;

·        whether the RRT failed to deal with the claim that the assault of the applicant in detention was persecution;

·        whether the RRT failed to consider whether the applicant had a well founded fear of persecution by the possibility of future similar detention or ill-treatment or as a result of having a specific profile (including being photographed by security forces) or due to being a Tamil, thereby failing to consider the future risk that the applicant might experience if returned to Sri Lanka;

·        whether the RRT erred in logic in failing to draw conclusions that the applicant had not suffered persecution and did not have a well founded fear of persecution;

·        whether the RRT failed to comply with s424A;

·        whether the RRT denied the applicant procedural fairness.

5                     On 25 March 2003 the respondent Minister filed his contentions in response to those from the applicant. The Minister took issue with each of the matters raised by the applicant.

Factual background

6                     The applicant is a national of Sri Lanka and is of Tamil ethnicity. He was born on 3 June 1976. He entered Australia on 20 January 1998 as the holder of a student visa.

7                     The applicant applied for a protection visa on 10 July 1998. On 30 November 1998 a delegate of the respondent refused the application. On 24 December 1998 the applicant sought review of that decision by the RRT. On 18 April 2002 the RRT affirmed the decision of the delegate.

8                     On 14 June 2002 the applicant applied for constitutional writs and an injunction in the High Court with respect to the decision of the RRT.

The applicant’s claims before the RRT

9                     In essence, the applicant claimed to have a well founded fear of persecution because of imputed political opinion, i.e. the support of the Liberation Tigers of Tamil Eelam (“the LTTE”), in the context of being a young Tamil male.

10                  The chief evidentiary claims which relate to allegations of errors of law by the RRT were as follows:

·        in July 1996 the applicant was detained by authorities for a day, severely beaten and photographed before his release;

·        in August 1996 he was rounded up with in excess of 25 others and was detained for a day;

·        in August 1997 he was arrested in Colombo during a cordon and search operation and detained at a police station for two days.

11                  In September 1997 a friend who had worked with the applicant in providing assistance at refugee camps was arrested. The friend was called Senthooran. The applicant claimed that Senthooran had “probably told” the authorities that it was the applicant who appeared in some photographs in Senthooran’s possession, thereby linking the applicant with the LTTE.

12                  After learning of the arrest of Senthooran the applicant went into hiding and arranged to leave Sri Lanka by applying for a student visa to enter Australia.

13                  In June 1998, whilst studying in Australia, the applicant was informed by his father that another friend, Navaneethan, whose photograph had been found in the possession of Senthooran, was also taken by the authorities in late May 1998.

14                  The applicant’s father told him that the security forces had come to the applicant’s family home on information obtained from Navaneethan. They assaulted the applicant’s mother and sister and bombed part of the house. The applicant’s father also informed him, on 18 June 1998, that Senthooran’s and Navaneethan’s whereabouts were unknown and that the authorities were looking for the applicant.

Findings of the RRT

15                  The RRT accepted that the applicant had a subjective fear of returning to Sri Lanka, his country of origin. The RRT further accepted that the treatment feared by the applicant if he returned to Sri Lanka, i.e. torture and serious harm, would amount to persecution. However, the RRT found that the applicant’s fear of persecution was not a well founded fear.

16                  The RRT accepted that the applicant and his family had suffered dislocation and interruption to normal daily life as a consequence of civil conflict, which occurred in “a war-torn and violence prone country”.

17                  The RRT did not accept that the applicant was more than “a victim simply of a generalised conflict”.

18                  It noted that although the applicant was a Tamil male from the north of the country “he was able to continue with at least a relatively normal progress through life”, including educational achievements.

19                  The RRT found that the applicant’s claims about his detention and beating in July 1996 and his detention in August 1996 were plausible. However, it found that the effects of those events were “short lived”, saying that:

“…his education was not interrupted nor was he prevented from moving to Colombo or while there from moving about Colombo. There was nothing at that time to indicate that the authorities considered him to be a risk to Sri Lanka’s security.”

20                  The RRT did not accept that the applicant’s treatment or persecution in 1996/1997 was of a type which showed that he would be persecuted in the future.

21                  The RRT accepted that the applicant was, on one occasion, detained in Colombo until he was able to verify his identity. It did not accept that those acts constituted persecution in the context of the ongoing civil war. In this regard the RRT said:

“…given the prevailing tense situation in the 1990s, it cannot be held that the government was acting in a seriously discriminatory fashion or in a persecutory way by the fact of detaining for identity checks.”

22                  Apparently in respect of his detention in Colombo, the RRT said that:

“…the Applicant was not treated to the point of persecution during his brief period of detention and this contributes to the finding that the Applicant had not been persecuted for reasons of his Tamil ethnicity or … imputed political opinion before he left his country.”

23                  The RRT did not accept the applicant’s claim that he appeared in photographs taken from the home of Senthooran in September 1997. It found that the authorities, had they wished, could have located the applicant at that time. It also found that the applicant:

“..was not a person of concern to the authorities by reason of the alleged arrest of Senthooran, nor was he wanted on suspicion of support for LTTE.”

24                  The RRT did not accept that Navaneethan told the authorities about the applicant. It rejected the claims of assault on his mother and sister and bombing of the family home. The RRT rejected the claim that simply being a young Tamil male, born in Jaffna, “is sufficient reason to find (the applicant) to be a person in need of protection from persecution in Sri Lanka”.

25                  The RRT said at p 15 of its decision that it:

“…has also considered the information and put this to the Applicant that there are peace negotiations between the LTTE and the government which appear to have some chance of succeeding. The Tribunal accepts that it is too early in this process to find that there has been a substantial change in the country; however it does find that the changes which are taking place are ones which support a finding that the situation is not one where a young Tamil male from Jaffna automatically is under suspicion and faces a real chance of abuse of his human rights.” (emphasis supplied).

26                  The RRT then immediately turned to the applicant’s own circumstances, including his education in Colombo as well as in the north. It also referred to his father being a long-time public servant in Colombo and to the fact that he, his brother and his sister were all granted passports to leave Sri Lanka. It concluded that the applicant had no automatic chance of persecution “simply on ethnicity, gender, age and place of birth”.

27                  The RRT found that there was not a real chance that the applicant would be detained at the airport on return to Sri Lanka. It found that he came from “a moderately well-to-do family who still live in Colombo …”. It considered that he could safely return to Sri Lanka.

Persecution – the beating in detention in July 1996

28                  Counsel for the applicant, Mr A Krohn, submitted that the RRT erred in law by failing to consider as “persecution” the beating in detention of the applicant by the authorities in July 1996 and in so doing misunderstood the ambit of what constituted “persecution”.

29                  The RRT, at p 11 of its decision, described the applicant’s claims about what happened to him in July 1996 as “plausible in the context of what was happening in Sri Lanka”. At that point it made no finding about whether the claims were true, saying:

“However, even if the Applicant was harmed as he has alleged, the effects were short-lived. By the next month he had sat and passed his GCE examinations. He was granted a permit by the army to go to Colombo which he did by February 1997 and he continued there to complete a Diploma in English.” (emphasis supplied).

30                  The RRT then said, at p 12, that:

“there is no convincing evidence that he was persecuted over that period in a way which foreshadows future persecution.” (emphasis supplied).

31                  On a fair reading of the RRT decision it appears to me that the RRT did not reject the claim that what happened to the applicant in July 1996 amounted to persecution. It found the claim plausible and said that even if it was true the “effects were shortlived”. In effect the RRT said, although expressed somewhat inelegantly, that if the events of July 1996 amounted to “persecution”, there was little likelihood of their reoccurrence and in any event the acts of the authorities did not occur by reason of the applicant’s imputed political opinion or ethnicity but as part of the response of the authorities in a civil war context.

32                  I do not consider that the RRT erred in law by failing to consider the beating in detention of the applicant by the authorities in July 1996 to be persecution. The better view of the RRT’s approach to that question is set out in the preceding paragraph of these reasons for judgment.

33                  Mr Krohn next submitted that the RRT failed to consider whether the applicant had a well founded fear of persecution by similar detention or ill treatment. That submission is untenable as the RRT specifically directed itself to that issue by describing the effects of the detention as “short-lived”. I reject the contention that the RRT fell into jurisdictional error with respect to its treatment of the July 1996 incident.

34                  Mr Krohn submitted that the failure of the RRT to properly consider the meaning of persecution is evidenced by its finding that:

“…the Applicant had not been persecuted by reasons of his Tamil ethnicity or political opinion, or imputed political opinion before he left his country”.

35                  There are two answers to this submission. First, if that finding is wrong, it is an error of fact, not of law. Second, a fair reading of that part of the RRT’s decision reveals that the RRT determined that any persecution arising from the detentions in 1996 and 1997 were not related to a convention reason for persecution, but part of a security operation in the context of a civil war.

Errors of Logic

36                  Mr Krohn formally submitted that the RRT’s decision was illogical given its false understanding of what constituted persecution. However, he conceded that want of logic by the RRT is not a ground of review in the Court, based on the judgment of the Full Court in Gamaethige v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 424. I accept that concession and will say no more about the topic, other than to mention that the issue was recently addressed in VGAO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 68 by a Full Court.

Section 424A

37                  Mr Krohn submitted that the RRT breached s424A of the Act by failing to give to the applicant in writing particulars of information which the RRT considered would be the reasons for a decision affirming the decision of the delegate. The relevant information was alleged to be “that there are peace negotiations between the LTTE and the government which appear to have a chance of succeeding”.

38                  In my view s424A(3) applies to the facts of this case. That sub-section excludes from the ambit of s424A information, “that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member”. The very way the RRT dealt with the issue of the peace talks illustrates that it was dealing with a general issue and not one specific to the applicant. It did so in the context of “a young Tamil male from Jaffna”. After its treatment of the general situation by reference to the peace talks it then started to deal with the applicant’s personal situation saying, “(I)t relates here to the Applicant’s own circumstances”.

39                  It is difficult to envisage how information about the peace talks could possibly be information that was specifically about the applicant. It was conceded that it was not specifically about the applicant and I accept that concession. I reject the submission that the information is not about a class of persons, of which the applicant is a member. The information was about and relevant to all persons who may have been affected by the peace negotiations or, at the very least, a class of persons in Sri Lanka with an imputed political opinion in support of the LTTE or those who actually have such political opinion.

40                  If I am incorrect in my view that a breach of s424A did not occur I consider that the failure would have been a merely technical one that would not have affected the outcome of the application before the RRT. The RRT did go on to consider the applicant’s personal circumstances immediately after mentioning the peace talks. Further the RRT accepted that it was too soon to know whether the peace process would bear fruit.  Its sole use of its reference to the peace talks was in support of its view that simply being a young Tamil male from Jaffna would not make one liable to persecution. Further, the evidence of the applicant before the Court supports the view that the breach would not have made any difference to the outcome of the proceeding, as the applicant gave evidence that if he had received the information in writing and had the opportunity to consider that information, it would not have made a difference to his answer before the RRT.

41                  It was accepted by Mansfield J in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 577 at [46] that a technical, non-consequential failure to comply with s424A does not result in the RRT committing a jurisdictional error. His Honour’s approach was recently followed by Weinberg J in VDAU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 363. I also consider it to be a correct view and consequently reject the submission of Mr Krohn that every breach of section 424A, no matter what sort, is necessarily a material breach.

Procedural Fairness

42                  It was submitted by Mr Krohn that the applicant was denied procedural fairness because he did not have any proper opportunity to consider and respond to the RRT’s statement that peace negotiations were occurring. The RRT stated that it put the information to the applicant; see [25] above. Mr Krohn made no attempt to tender the transcript of the RRT hearing to show that the applicant was at any particular disadvantage as a result of the information being put to him. It appears in any event from the evidence of the applicant that he was at no particular relevant disadvantage.

43                  I see no basis for the assertion that a response to the issue raised by the RRT would necessarily involve complex evidence and conclusions, as Mr Krohn submitted. I also reject the assertion that the information regarding peace talks was a significant basis for the RRT’s decision. As indicated in the context of dealing with the submission based on s424A, the information was only relied upon to show that it was not automatically the case that any young Tamil male from the north would be subject to persecution simply for being a person with those characteristics. The RRT did go on to consider the personal circumstances of the applicant. The information was therefore not determinative of the application. It certainly was not determinative of whether the applicant’s subjective fear of persecution was well founded. In any event I have no reason to consider that the applicant did not have a proper opportunity to respond to the information during the hearing before the RRT. I do not consider that he would have been any better placed by having the information addressed to him in writing. The applicant gave brief evidence to that effect before the Court in this proceeding. In fact that was the only relevant evidence the applicant gave in the proceeding and the only evidence from the applicant that was admitted.

44                  The applicant’s ground of review based on an alleged denial of procedural fairness is not established.

45                  The information cannot be described as, “(a) critical factor on which the decision (was) likely to turn”; see VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 at [27].

46                  One can readily contrast the facts in VAAC to those in the instant case. In VAAC, there was a denial of procedural fairness as critical evidence was not disclosed to the asylum seeker, but was revealed to him for the first time when he read the decision rejecting his application; see especially at [28] of VAAC.

Disposition

47                  As no ground of review alleged has been established, the following orders will be made:-

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs, including reserved costs, to be taxed in default of agreement.

Associate:

Dated:              30 April 2003