FEDERAL COURT OF AUSTRALIA

Applicants M60/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1612

MIGRATION – protection visa – appellants claimed fear of persecution by Liberation Tigers of Tamil Eelam (“LTTE”) on basis of imputed political opinion – reason proffered for not having reported threats made by LTTE, and related incidents, to police was “fear of reprisals” – Refugee Review Tribunal found appellants could be protected by state authorities and did not have well-founded fear of persecution – application for review in Federal Magistrates Court – appeal – new ground of appeal that Tribunal failed to consider “element or integer” of appellants’ claim – whether appellants’ explanation for not reporting incidents and threats to police was “element or integer” of their claim – whether, in any event, Tribunal considered and rejected explanation

M60 v Minister for Immigration & Multicultural & Indigenous Affairs (No 1)  [2003] FMCA 428 referred to

M60 v Minister for Immigration & Multicultural & Indigenous Affairs (No 2)  [2003] FMCA 429 referred to

Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at [40]-[42] referred to

Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396 at [79] referred to

SZAFJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 291 at [20]-[21] referred to

NAZF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 340 at [4] referred to

SZAFW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 173 at [21]-[28] referred to

SZBNG v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 261 at [22]-[26] and [43] referred to

Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [64]-[65] considered

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs  (2003) 75 ALD 630 at [45]-[49] discussed

APPLICANTS M60/2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V832 of 2003

WEINBERG J

8 DECEMBER 2004

MELBOURNE

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellants pay the respondent’s costs.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This is an appeal from a judgment of a Federal Magistrate who, on 12 August 2003, dismissed an application for review of a decision of the Refugee Review Tribunal (“the RRT”).  By that decision, given on 19 March 2002, the RRT affirmed a decision of a delegate of the respondent to refuse the applicants a protection visa:  M60 v Minister for Immigration & Multicultural & Indigenous Affairs (No 1) [2003] FMCA 428.  The Chief Justice has determined, pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), that the appeal should be heard and determined by a single judge.

the background facts

2                     The appellants are a husband, wife and their son.  The husband was born in Sri Lanka in 1970.  He is an ethnic Bohra, and speaks Gujarati.  The Bohra are a sect of Islam, and have a community in Sri Lanka. 

3                     The husband was brought up in Batticaloa, in the Eastern Province, where his father ran a hardware business.  In 1976, he and his brother were sent to Colombo to be educated.  They returned to Batticaloa in 1987 in order to help their father run the family store.  He and his wife were married in 1993, and a son was born in June 1994. 

4                     The husband claimed that his father was, at that time, a strong supporter of the United National Party (“the UNP”), then in government in Sri Lanka.  He claimed that his father was frequently harassed and threatened by members of the Liberation Tigers of Tamil Eelam (“the LTTE”).  According to the husband, his father complained to the police, but they did nothing. 

5                     The husband claimed that in 1994, members of the LTTE assaulted him, as well his father.  More significantly, they abducted his brother, demanding a ransom for his return.  Both he and his father made a series of payments, but to no avail.  The father was also required to pay a “tax” to the LTTE if he wished to visit Colombo. 

6                     The husband left Sri Lanka in 1994, without his wife or child, in order to find employment in Qatar.  While working there, he made numerous trips to Colombo in order to visit them.  He claimed that while he was in Qatar, his father wrote to him telling him that the LTTE had destroyed the hardware shop.  Apparently, it had been burnt to the ground.  The father said that he had nothing to live on, and only survived because his daughter-in-law in Colombo was providing him with money. 

7                     The wife was born in Negambo, on the outskirts of Colombo.  She lived in Sri Lanka at all times, save for two visits to Qatar, from July to September 1995, and in December 1998.  She was officially identified as Sinhalese, as that was her father’s ethnicity, but had a Tamil mother.  She claimed that she was regarded by the LTTE as a Tamil. 

8                     According to the wife, in February 1995, the LTTE demanded money from her.  She claimed that she fled their home, and moved to another suburb of Colombo.  She said that in March 1997, she heard from her father-in-law who told her that he was still being harassed.  She said that she was again threatened by the LTTE in December 1997, and demands for money were made.  She claimed that in November 1999, she was threatened at gunpoint, and told that she would have to permit a Tamil family to live in her house.  She moved home, and lived with friends, fearful of further harassment. 

9                     The wife finally left Sri Lanka for Australia, arriving with her son on 13 April 2000.  Her husband arrived shortly afterwards, on 28 April 2000.  It is of some significance to note that he had renewed his Sri Lankan passport a year earlier. 

10                  On 12 May 2000, the appellants lodged applications for a protection visa.  When the wife was initially interviewed by a delegate of the Minister, and asked whether she had told the police about any of the threats or demands allegedly made by the LTTE in 1995, 1997, or 1999, she replied that she had not “because she feared reprisals”.  The husband gave a similar account, claiming that he had not reported any of the atrocities perpetrated by the LTTE, including the abduction of his brother, and the arson of his father’s shop, because he feared that there would be reprisals.

11                  In his initial statement in support of his application for a protection visa, the husband claimed that he had no idea whether his brother and father were still alive.  He said that the basis of his claim was “imputed political opinion”, derived from his father’s membership of the UNP.  His later written submissions added that his father was perceived as being wealthy, which made him a prime target for extortion.  He reiterated that he had neither seen, nor heard from, his brother since he was abducted in 1994.  He explained that he had returned to Sri Lanka on numerous occasions after 1994, despite being fearful of the LTTE, in order to check on his wife’s welfare, and to obtain information regarding his brother and father. 

12                  A migration agent represented the appellants before the RRT.  He submitted that security in Sri Lanka had broken down, and that the government could not protect its citizens.  Importantly, for present purposes, he also submitted that:

“…the Applicants’ fear of reprisals is a reasonable explanation for not seeking protection from the state against LTTE abduction, threats and extortion.”

findings of the rrt

13                  The RRT accepted that the husband was a national of Sri Lanka and a member of the Bohra sect.  It noted that there was no evidence that he had ever been targeted by the LTTE because of his religion.  Nor was his father among the victims of anti-Muslim attacks that had occurred in the early 1990s.  The husband did not claim that he faced persecution on account of his religion even when his migration agent raised that issue at the hearing.  Accordingly, the RRT focussed exclusively upon the claim of imputed political opinion. 

14                  The RRT made the following findings regarding that claim. 

“The Tribunal has grave doubts that the Applicant’s brother was abducted in 1994 and has not been seen since then, while, in the meantime, the LTTE has continued to harass his father and extort money from the Applicant on the basis it will not harm his brother.  The claim that the Applicants have endured systematic harassment over a period of six years or so is a story that does not sit comfortably with the failure to report to the authorities the brother’s abduction, the arson of the father’s business and the subsequent threats and demands of the LTTE; the failure of the Applicant’s father to move to Colombo from Batticaloa to avoid the LTTE, especially after his business was destroyed in 1994/5; the willingness of the Applicant to leave his wife and child in Colombo at the mercy of the LTTE; the failure of the Applicant’s spouse to report that the LTTE demanded her house to accommodate men they identified as Tiger terrorists; and the willingness of both the Applicant and his spouse to return to Colombo from Qatar – in the Applicant’s case, on thirteen occasions over five or six years.  Further, their final escape would appear to lay the groundwork for the Applicant’s father’s and brother’s deaths, as they would no longer be meeting the LTTE demands which they claim have been responsible for keeping the brother alive.

The Applicant returned to Colombo on thirteen occasions and his wife returned on two occasions.  That, in itself, provides sufficient reason for the Tribunal to conclude that they do not have genuine fears of persecution for the reasons they have described, although they may have other legitimate reasons for wishing to escape Sri Lanka.  Even if the Tribunal were to believe the Applicant’s account (which it doesn’t) the consequences for them were that the spouse was twice asked for, and paid, money to the LTTE, once in 1995 and later in 1997.  That is not, in the Tribunal’s view, harm that amounts to persecution for the purposes of section 91R (1-2) of the Act, particularly when it is noted that the Applicants were able to continue paying their mortgage and funding numerous trips between Qatar and Colombo.  The other time the Applicant’s spouse says she was confronted by the LTTE is discussed below.  Suffice to say at this point the Tribunal does not accept that incident occurred.

While it is plausible that some demands and threats might not be reported to the security forces in Sri Lanka, it is inherently implausible that the abduction of the Applicant’s brother and the subsequent demands for money over six years would not be reported by the victim’s family.  It is also implausible that the Applicant’s father would not report the arson of his business or that he would not move to Colombo to avoid harassment by the LTTE after that incident.  It can hardly be said that the Sri Lankan authorities failed to protect the Applicant and his spouse when they have not sought protection. …”

15                  The RRT then considered certain country information regarding conditions in Sri Lanka, including some material submitted by the husband.  According to the RRT, that material demonstrated that the Sri Lankan government devoted a massive amount of time and energy to countering the LTTE.  It also indicated that most documented cases of human rights abuses involved persons suspected of being connected with the LTTE, although there were also references to abuses by the LTTE.  There was a massive military and police presence in Colombo aimed at protecting the general population from LTTE insurgency.  It was clear that the LTTE did not control Colombo, notwithstanding sporadic terrorist attacks, particularly on prominent people and institutions.  There was nothing to suggest that the LTTE harmed those from whom it demanded money even if such demands were not met. 

16                  The RRT concluded that the Sri Lankan authorities were “both willing and able to protect citizens threatened by the LTTE in Colombo”.  It observed:

“While the Tribunal finds it unbelievable that the Applicant would not report the more serious incidents, such as abduction, arson, threats at gunpoint and so on, the reason he gave for his unwillingness is not, in any case, because of a well-founded fear of persecution for Convention reasons (to paraphrase Ahmed, above).  Rather, it discloses a response to a criminal threat.  The Tribunal is satisfied that the Sri Lankan state is both willing and able to extend the expansive protection and security measures it has at its disposal to the Applicants, without withholding such measures for Convention reasons.  There is, of course, no guarantee that the Applicants will never encounter harm, but the Tribunal is satisfied that the provision of state protection will remove any real chance that the Applicants might face persecution at the hands of the LTTE if they return to Sri Lanka.” 

17                  Finally, the RRT concluded:

“In summary, the Tribunal is not satisfied that the Applicant faces a real chance of persecution because he is a Muslim or that his wife faces a real chance of persecution because she is part Tamil.  It is not satisfied that the Applicant’s brother was abducted as he claimed or that the Applicant and his spouse were otherwise harassed by the LTTE as he described.  In particular, their failure to seek protection and the Applicant’s willingness to leave his family in Colombo and return to that city on numerous occasions runs counter to a claim that he feared persecution as he says.  The Tribunal finds that neither he nor his wife have a subjective fear of persecution for the reasons they described and thus their claimed fears are not well-founded.  On the other hand, the Tribunal accepts that there is ongoing tension in Sri Lanka and that the sporadic terrorist attacks and oppressive security procedures that permeate Colombo make it an undesirable and insecure place to raise a family.  In that context, it is perfectly understandable that the Applicants have embellished a story to enhance a claim for protection.

If they return to Sri Lanka, the Tribunal is satisfied that they can avail themselves of state protection against attacks by the LTTE and that there is not a real chance they face persecution for the reasons they described.  It is not satisfied that either the Applicant or his wife and son has a well-founded fear of persecution for Convention reasons and finds they are not persons to whom Australia has protection obligations under the Refugees Convention and Protocol and, therefore, it concludes that they do not meet that criterion for the purposes of granting protection visas.” 

the two proceedings before the federal magistrate

18                  On 12 August 2003, a hearing was conducted before the Federal Magistrate at which the appellants did not appear.  They had, however, filed written contentions of fact and law, drafted by counsel.  Based upon those contentions, his Honour dismissed the application for review, and published reasons for judgment.  It is that judgment which is the subject of the present appeal. 

19                  On 17 September 2003, the appellants, now represented by different counsel, sought to have the judgment of 12 August 2003 set aside:  M60 v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2003] FMCA 429.  The husband provided an affidavit in support of that application which purported to explain why he and his wife had not appeared at the first hearing.  Counsel also sought leave to file an amended application, which set out a new ground of review. 

20                  In short, the new ground was essentially the same as that now reflected in the amended notice of appeal to this Court.  It was claimed that the RRT had exceeded its jurisdiction, or constructively failed to exercise jurisdiction, because it failed to consider “an element or integer” of the appellants’ claims.  That “element or integer” was the explanation offered by the appellants for not having reported the various acts perpetrated by the LTTE to the police, namely their fear that this would lead to reprisals by the LTTE against themselves, and the members of their family. 

21                  The Federal Magistrate, in his judgment in the second application, accepted that the appellants had provided an adequate explanation for their failure to appear on the first occasion.  However, his Honour concluded that the new ground “did not raise an arguable case”.  In substance, he found that the RRT had rejected the appellants’ claims because it regarded those claims as implausible, and also because it considered that the appellants had embellished the truth. 

22                  His Honour considered that there was no substance in the appellants’ contention that the RRT had failed to consider their “claim” that they had not reported any of these incidents to the police because they feared reprisals.  Leaving aside any question of whether that contention was properly to be regarded as “an element or integer” of their claim, he concluded that it had been considered by the RRT, and rejected.  Accordingly, he dismissed the application to have the first judgment set aside.

the appeal to this court

23                  The amended notice of appeal filed in this Court on 29 October 2003, contained both the new ground, and a second ground of appeal.  That second ground alleged that there was no evidence to support the RRT’s finding that State protection would be afforded to the appellants so as to remove any real chance that they might face persecution at the hands of the LTTE.  However, during oral argument, the second ground was not pressed. 

24                  The first and only ground of appeal therefore is the same as that which the Federal Magistrate considered to be “unarguable”.  Counsel for the appellants, Mr Gibson, was in no way dissuaded from pursuing that ground by that finding.  He submitted that, upon a careful analysis of the RRT’s reasons for decision, it was apparent that “an element or integer” of the appellants’ claim had been overlooked.  Although the RRT had noted, correctly, that the reason that the appellants gave for not having reported any of the LTTE-related incidents to the police was that they feared reprisals, it had not made any finding in relation to that issue.  That meant that a critical element, or aspect of their case had been ignored.  This amounted to a constructive failure to exercise jurisdiction, and meant that the RRT had fallen into jurisdictional error. 

25                  Mr Gibson referred to a number of authorities in support of this contention.  He relied, in particular, upon Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at [40]-[42]; Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396 at [79]; SZAFJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 291 at [20]-[21]; NAZF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 340 at [4]; SZAFW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 173 at [21]-[28]; and SZBNG v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 261 at [22]-[26] and [43].  These cases all involved failures on the part of the RRT to consider and deal with each of the claims made in support of refugee status, or at least each of the integers of those claims.  In all of them, a distinction was drawn between a failure to address and deal with a claim, or its component integers on the one hand, and a failure merely to attend to evidence, even probative evidence, and by such route commit a factual error on the other. 

26                  Mr Gibson submitted that the appellants’ explanation for not having gone to the police in response to the LTTE incidents was so pivotal to their credibility that it should be regarded as an “integer” of their claim.  That made this issue mandatorily relevant for consideration in the sense discussed in Htun at [42], and meant that a failure to give it the required consideration gave rise to jurisdictional error. 

27                  Counsel for the respondent, Mr Fairfield, submitted that it was plain that the appellants’ explanation for not having gone to the police could not be regarded as an integer of their claim.  He submitted that even if it were, it was clear that the RRT had implicitly considered and rejected what they said about that matter.  He relied in particular upon the observations of McHugh J in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [64]-[65], and the decision of the Full Court in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs  (2003) 75 ALD 630 at [45]-[49]. 

28                  The starting point in considering these respective submissions is to note that it will not always be easy to distinguish between a “claim” advanced on behalf of an applicant, an “element or integer” of that claim, and a “piece of evidence” that may bear upon the criterion for the grant of a protection visa. 

29                  In Applicant WAEE, the Full Court recognised at [49] that in an appropriate case even “material” put before the RRT, and the “contentions advanced in respect of that material”, may have to be considered by that body if it is to perform its statutory duty according to law.  It is not clear whether, by that statement of principle, the Court intended to broaden the category of “integers” previously developed by other cases.  However, irrespective of the scope to be accorded to the term “material” in that passage, Mr Gibson was unable to find any authority that supported his wider contention that the RRT was required to made an express finding regarding a “piece of evidence” that was “indirectly supportive” of an aspect of a claim that had itself been considered and rejected. 

30                  It is useful to recall what McHugh J said in Durairajasingham:

“[64]  There is some authority in the Full Court of the Federal Court for the proposition that s 430(1) requires the reasons of the tribunal to refer to evidence contrary to findings of the tribunal.  However, the contrary view was taken by differently constituted Full Courts in Ahmed v Minister for Immigration and Multicultural Affairs, Addo v Minister for Immigration and Multicultural Affairs and Sivaram v Minister for Immigration and Multicultural Affairs.  In Addo, the court said:

Section 430(1) does not impose an obligation to do anything more than to refer to the evidence on which the findings of fact are based. Section 430 does not require a decision-maker to give reasons for rejecting evidence inconsistent with the findings made. Accordingly, there was no failure to comply with s 430(1) of the Act.

…

It is not necessary, in order to comply with s 430(1), for the tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding which it made.

[65]    In my opinion, this passage correctly sets out the effect of s 430(1)(c) and (d). However, the obligation to set out “the reasons for the decision” (s 430(1)(b)) will often require the tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings.  Whenever rejection of evidence is one of the reasons for the decision, the tribunal must set that out as one of its reasons.  But that said, it is not necessary for the tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the tribunal.  Indeed, to do so would be contrary to the direction in s 420 of the Act that:

(1)        The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

(2)        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.”  (footnotes omitted)

31                  It may be accepted that the appellants’ explanation for not having reported the LTTE incidents to the police was regarded by the RRT as being of some significance, particularly when it came to assessing the appellants’ credibility.  The RRT plainly regarded that explanation as implausible.  It set out clearly its reasons for arriving at that conclusion.  The RRT considered that the abduction and possible murder of the husband’s brother, and the destruction of the father’s shop by arson, were matters of such gravity that, had they occurred, they would have been reported to the police irrespective of any fear of reprisals.  This was a conclusion on an issue of fact.  That conclusion could not be the subject of merits review in the Federal Magistrates Court, still less on appeal to this Court.  On any view, the explanation offered was not an integer of the appellants’ claim.  It was, in truth, a piece of evidence that, if accepted, provided indirect support for their claim and its real integers. 

32                  If I am wrong in regarding the “explanation issue” as nothing more than “a piece of evidence”, and it is in fact an integer of the appellants’ claim, this would still be of no avail on the appeal.  The fact is that the RRT did consider the explanation, and rejected it.  It said, more than once, that the abduction of the brother, the ransom demands, and the arson of the father’s shop were all matters of such gravity that, had they occurred, it was implausible to think that they would not have been reported to the police.  The RRT may not have spelt out, with complete precision, its reasons for arriving at that conclusion.  However, it was not bound to do so.  It expressed its reasons with sufficient clarity to meet its statutory obligations. 

33                  It follows that insofar as the appellants require leave, on the appeal to this Court, to argue a new ground of review that was not argued before the Federal Magistrate, there is no point in granting such leave.  The proposed new ground has no prospects of success.  The appeal must be dismissed with costs.

Associate:

Dated:              8 December 2004