FEDERAL COURT OF AUSTRALIA

M190 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 730

APPLICANT M190/2003 -v- MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS  and  REFUGEE REVIEW TRIBUNAL

VID 1026 of 2005

RYAN J

13 JUNE 2006

MELBOURNE

On appeal from the Federal Magistrates Court of Australia

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay the first respondent’s 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.

On appeal from the Federal Magistrates Court of Australia

REASONS FOR JUDGMENT

1                     This is an appeal from orders of the Federal Magistrates Court of 10 August 2005 dismissing the appellant’s application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 11 December 2002.  By that decision, the Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”), refusing to grant the appellant a protection visa.

2                     The grounds on which the appellant relied before the learned Federal Magistrate were;

‘1.        The respondent has erred jurisdictionally in failing to correctly interpret the Convention and Protocol in that

a)         The respondent failed to evaluate whether the applicant's experiences produced a well founded fear of being persecuted from his past experiences.

b)         The respondent failed to apply the correct test, i.e. the objective well founded fear of persecution in relation to the applicant's claimed fear of harm from the LTTE.’

3                     The appellant is an unmarried Muslim male citizen of Sri Lanka.  He arrived in Australia on 1 July 1999 on a student visa and, on 13 August 1999, applied for a protection visa claiming to fear persecution at the hands of the Liberation Tamil Tigers of Eelam (“the LTTE”) by reason of an imputed political opinion.  The claim was encapsulated in these paragraphs from a detailed statement in support of the appellant’s application for a protection visa which were reproduced and modified as follows by the learned Federal Magistrate in the reasons below;

‘The LTTE were naturally anxious to punish anybody who was involved against them in this way. In March 1994 they captured the applicant's father and interrogated and tortured him and after a few days, however, he was able to escape. In December 1994 the LTTE burned down the applicant's father's shop. The family was forced to flee from (the area). They split up and the applicant's father went missing. He was still missing at the present time and the applicant believes has probably been killed by the LTTE. For a short time the applicant and his mother and sister stayed with different relatives in places well away from (his home town). They were themselves in danger from the LTTE because of the applicant's father's claimed involvement in the Islamic Jihad movement. The applicant did his best to disguise himself by changing his hairstyle and supported himself by occasional labouring work. (as amended).

……

The applicant fears persecution on the basis of a political opinion which is imputed to him by the LTTE, namely the political opinion of being involved in the Islamic Jihad movement in opposition to the LTTE.’

4                     In submissions in support of the appeal, the solicitor for the appellant focused on a finding by the Tribunal to the effect that there is no evidence that Muslims living in Colombo are, or would be, targets of the LTTE.  That finding led the Tribunal to conclude that, as an individual member of a particular ethnic religious group, the appellant did not face a real chance of persecution.  That was said to be a finding in the absence of evidence.  However, the “no evidence” ground of review, to the extent that it is available at all in applications under the Migration Act 1958 (Cth) (“the Act”), can only vitiate an affirmative finding of fact.  In the present case, all that the Tribunal said was that it was not satisfied that the appellant had a well-founded fear of persecution.  That was not an affirmative finding of fact.  A Full Court of this Court in SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 considered the “no evidence” ground in this context and, after referring to its statutory recognition in s 5(1)(h) and s 5(3) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), continued, at [14]-[16];

‘A decision to grant or refuse a visa is conditioned upon satisfaction as to the matters specified in s 65(1) of the Act which, so far as is relevant, provides;

“After considering a valid application for a visa, the Minister:

(a)        if satisfied that:

            … …

(ii)        the other criteria for it prescribed by this Act or the regulations have been satisfied;   …

… …

is to grant the visa; or

(b)        if not so satisfied, is to refuse to grant the visa.”

It can be seen from the form of that sub-section that it does not require the decision-maker to reach a decision to refuse to grant a visa only if a particular matter is established.  Rather, it requires a refusal if the decision-maker is not affirmatively satisfied that the criteria for the visa in question have been satisfied.  A criterion for a protection visa specified in s 36(2) of the Act is;

“…that the applicant for the visa is:

(a)        a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

(b)        a non-citizen in Australia who is the spouse or a dependant of a non-citizen who:

(i)         is mentioned in paragraph (a); and

(ii)        holds a protection visa.”

It can be seen that satisfaction of that criterion depends, not on a particular matter being established, but on the Minister’s attaining a state of satisfaction as to a number of matters which have to exist for Australia to have protection obligations to an applicant under the Refugees Convention.  As Gummow and Hayne JJ observed in Abebe v The Commonwealth(1999) 197 CLR 510 at 576 [187] in relation to the Tribunal when standing in the shoes of the Minister;

“The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.”’

5                     Mr Fernandez, the solicitor for the appellant, directed attention in the second place to the finding of the Tribunal which occurs in this passage from its reasons;

‘The Tribunal finds that the Applicant would receive the necessary degree of protection required to dismiss his claim to need to seek protection in another country. The government of Sri Lanka is a functioning one, as are the agencies of law, the police and the courts.  There is no reason for the Tribunal to resile from finding that he could access protection in the capital city of his country.’

6                     The finding in that passage was said also to be unsupported by evidence and to be “at best an opinion of the Tribunal.”  However, the finding has to be read in context, particularly that provided by the immediately preceding paragraph in the Tribunal’s reasons where these observations occur;

‘A person cannot be said to be in need of international protection if protection is in fact available in another part of the country of origin.  Although the Applicant has argued that he could not be safe anywhere in Sri Lanka, the Tribunal does not find this to be the case.  It has noted above that Colombo has been a place of safety for the majority of its population even through the darkest days of the conflict.  Much of the LTTE violence has been random and so unconcerned with who was being harmed and/or aimed at specific targets such as senior politicians, including, of course, prime ministers.  The Tribunal is not satisfied that even if the LTTE re-activated itself in Colombo, it would be concerned to trace a young man who had a very tangential link with the Muslim Home Guards some years ago.’

7                     Mr Fernandez for the appellant pointed to passages in a written submission to the Department of Immigration and Multicultural Affairs (“the Department”) dated 12 August 1999 in support of the appellant’s application for a protection visa.  That statement instanced “numerous acts of terrorism carried out by the LTTE against Sri Lankan citizens of all races and in all areas of that country, including the capital, Colombo.”  The statement went on to refer to assassinations by the LTTE of prominent political figures and asserted that the LTTE had demonstrated an ability, through a network of spies, to track down and kill its opponents not only throughout Sri Lanka but overseas.  It was said on the hearing of the appeal to this Court that the Tribunal had not questioned the appellant about his ability to return to live in Colombo nor about the authorities’ inability to protect him and other opponents of the LTTE even in Colombo.  Rather, the Tribunal contented itself with saying, at p 11 of its reasons;

‘The Tribunal has been mindful of these considerations in assessing this application.  It notes that the Applicant’s credibility is put to the test by his contradictory and confused answers to simple questions such as residential addresses and years and places of schooling. A more serious contradiction lies in his claim to the Tribunal that his father was taken way once and did not return whereas his statement in his original application tells that his father was taken away, interrogated and tortured but, on that occasion, escaped after a few days.  Such a discrepancy is not minor.  If the Applicant’s credibility on these matters was central and crucial to the Tribunal’s findings then they would need to be assessed separately and together.  However, the key issues to be assessed in this matter, while taking into account his claims of his past, relate to the prospect of future persecution. 

One aspect of this must be a consideration of the peace negotiations and the prospect for peace, at least in the sense of the absence of conflict.  The Tribunal has considered the Applicant’s view, that the LTTE cannot be trusted and that it is in negotiations only because the post-September 11 world is uncomfortable for such organisations.  It finds his view has some merit but that, whatever the LTTE motives, the progress of the negotiations does raise the question as to whether what is happening in Sri Lanka can be regarded as a substantial change.’

8                     The Tribunal then went on to refer to certain pieces of “country information” within its own knowledge, including the fact that Muslims, as a defined minority, as well as the Sri Lankan Government and the LTTE were involved in the peace negotiations.  It then expressed the view that the “peace process is a serious one” although acknowledging that the appellant’s “fear that these talks could fall apart cannot be dismissed out of hand even if the talks can be assessed as more serious and significant than any previous negotiations.”

9                     The Tribunal then continued, at p 12 of its reasons;

‘However, even if the talks fail and there is a return to conflict, the Tribunal is not satisfied that the Applicant faces a real chance of harm for that reason.  The question of the Applicant’s association with Colombo must be raised in this matter.  While there have been reports and incidents in the past which indicate that the LTTE infiltrated the city and carried out acts of violence, the city also has been long regarded as the relatively safe location for many of Sri Lanka’s citizens.  At the present time, the peace talks and an obvious decrease in acts of violence which could be laid at the door of the LTTE, make Colombo even more a place of safety from the previous conflict.  In spite of his claims to the contrary, the Applicant has strong links to Colombo.  He was born there, as were his sister and his mother.  He has himself lived there, as an adult, for at least three years.  He has relatives in that city.  He told the Tribunal his mother and sister live and work in Colombo.  It is then reasonable to assume that the Applicant would not be placed at great disadvantage should he re-locate to that city.  If, as he has claimed, he spent most of his life in Kattakundy and does not wish to return there, he is not obliged to do so.  Colombo represents one area of the country in which it would be safe for him to reside.’

10                  It was in the context provided by those passages that the Tribunal made the findings set out in the extracts from its reasons which are reproduced at [5] and [6] above.  However, Mr Fernandez contended that there was no evidence to support what he called “the crunch line of the final decision” that the Government of Sri Lanka is a functioning one as are the agencies of law.  That finding also was said not to be supported by any evidence.  Support for this argument was claimed to be available from some reasons which I had expressed in VBAB v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 121 FCR 100 where it was observed, at 127 [68];

‘In considering whether the present applicant had a well-founded fear of persecution, the Tribunal stated that, in the absence of information pertaining to the particular individual, it is appropriate to place significant weight on historical evidence.  The Tribunal went on to express itself satisfied that, on the basis of the information available to it about the current situation in Afghanistan, there was not a real chance that the applicant would be persecuted for the reasons she suggested.  It is true that the Tribunal used the term “real chance” rather than the language of the Convention but I do not consider its use of that phrase to be erroneous.  As the passage just quoted from Guo [(1997) 191 CLR 559] indicates, the task of the Tribunal was to determine whether the applicant had a well-founded fear that she would suffer persecution if she returned to Afghanistan.  In determining whether a fear is “well-founded”, the Tribunal is required to consider the evidence available to it and determine whether the fear is soundly based rather than resting on mere assumption or speculation.  The Tribunal in the present case took that approach.  It set out the country information on which it relied and, on the basis of that information, it concluded that there had been a significant change in Afghanistan from the circumstances which prevailed when the applicant left that country.  There was no error of law in the Tribunal’s reaching that conclusion by those means.  Further, the Tribunal was required to consider whether the applicant’s fear was well-founded at the date of the hearing and not at some earlier time.  There was nothing in the information relied upon by the Tribunal to suggest that the changes of political control and philosophy in Afghanistan were so temporary or transient as to make the Tribunal’s findings mere assumption or speculation.  Nor was it suggested that the material relied upon by the Tribunal was unreliable, unrealistic, exaggerated or inflated.’

11                  In Minister for Immigration and Multicultural Affairs v A (1998) 156 ALR 489, R D Nicholson J held that the existence of a presumption that an applicant’s country of nationality will protect its citizens from persecution would be inconsistent with the function of the Tribunal to act in an inquisitorial fashion.  His Honour then continued, at 497;

‘In my opinion there is no foundation in authority or principle which should lead this court to accept the applicant's submission for the existence of a presumption in terms of Ward.

Since writing the above it has come to my attention that in Ratnam v Minister for Immigration and Ethnic Affairs (1997) 47 ALD 203 at 209 Emmett J said:

Much of the applicant's approach appeared to be based upon a contention that there was a presumption of persecution. However, one must start with the presumption that the country of nationality will look after its nationals Canada (Attorney-General) v Ward[1993] 103 DLR (4th) 1. An applicant must rebut that presumption, although the onus is not necessarily a heavy one. The applicant needs to demonstrate no more than that there is a real chance that the country of nationality will not look after its nationals and that the applicant will be persecuted. Nevertheless, there must be some material from which such a conclusion can be drawn. Further, whether the conclusion can be drawn from the material available is a matter for the tribunal and is subject to review only on the very limited grounds set out in s 476(1) of the Act.

It does not appear that the issue of whether such a presumption is recognised in Australian law was argued before his Honour. I differ from him only in that I do not consider Australian law has until now recognised the existence of such a presumption. I agree with him on the nature of the proof required by an applicant so that, in practical terms, little may turn on the recognition of a formal presumption.

For the applicant it is contended the existence of a presumption has at least this effect, namely, in a case where no evidence is led that the country of relevant nationality will not look after its nationals, then the presumption will prevail. In my view, in the absence of a presumption the failure of an applicant to make out that condition would result in that applicant failing to make out a case on that basis. There is no self-evident policy reason to construct a presumption in those circumstances.’

12                  Those observations can, I consider, be reconciled with my own comments in VBAB to reinforce the proposition that neither an applicant seeking to establish a well-founded fear of persecution nor the Tribunal in expressing itself to be not satisfied of the existence of such a fear, can rely on mere assumption or speculation or what R D Nicholson and Emmett JJ called, in the passages just quoted, a presumption.  Thus, if an applicant adduces evidence, or the available country information indicates, that the latest known circumstances in the applicant’s country of nationality provide a foundation for the fear asserted by the applicant, it is not open to the Tribunal to assume or speculate that conditions in that country have changed so as to eliminate the basis of the claimed fear.  However, that unremarkable proposition does not relieve an applicant of the burden of adducing some evidence tending to establish such a fear.  In the present case, the Tribunal expressly adverted to country information derived from an article written in 1995 by the Australian journalist, Lindsay Murdoch, which suggested that the Government’s ability to protect Muslims from LTTE violence had been weakened or compromised in the appellant’s home region around the town of Batticaloa.  By contrast, there was no reference to evidence suggesting a similar breakdown of governmental control or law enforcement in Colombo and the appellant adduced no such evidence.  It was therefore open to the Tribunal to have declined by implication to reach the state of satisfaction mandated by s 65 of the Act that the appellant as a young man living in Colombo with only a “tangential link with the Muslim Home Guards some years ago” would still have a well-founded fear of persecution.  As Kirby J observed in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, at 596;

‘However, the mere fact that a person claims fear of persecution for reasons of political opinion does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for reasons of political opinion.  It remains for the Minister in the first place to be “satisfied” (the Act, s 22AA) and, where that decision is adverse and a review is sought, for the applicant to persuade the reviewing decision-maker that all of the statutory elements are made out.’

13                  In written submissions in support of the appeal to this Court, it was indicated that, if the Tribunal’s finding that the appellant would have access in Colombo to protection from persecution was the reason or part of the reason for refusing him a protection visa, “then the Tribunal has not complied with the requirements of section 424A.”  That argument was not pressed on the hearing of the appeal.  However, it draws attention to the reasoning process which led the Tribunal to be not satisfied that the appellant had a well-founded fear of persecution. 

14                  In the course of its hearing on 11 December 2002, the Tribunal exposed to the appellant its understanding of what was then the current situation in Sri Lanka by asking;

‘.. what I suppose the real crux of the issue now is, is why couldn’t you go back now?  Things have changed a lot, so let’s start from this end now rather than from the other end about why you left.  Why can’t you go back now?’

15                  To that question the appellant replied;

‘… The situation is – the base is between the government and the LTTE Tigers, but not based among the people.  There’s no protection for people.’

16                  After discussion of the extent to which the LTTE exerted control, including the exercise of de facto judicial power, in Sri Lanka, the Tribunal asked the appellant “why couldn’t you be in Colombo” where there are “lots of people?”  The appellant gave some non-responsive answers to that question before the Tribunal asked “what I am struggling to see is why …. how it would affect you in terms of safety now?”  The appellant again evaded the question by speaking of his father’s formation of a Muslim home guard and a massacre which had occurred in his home village when the appellant had been 15 or 16 years of age.  Later, in the course of the same evidence to the Tribunal, the appellant accepted that he had left his home village in about 1996 for Colombo where he had lived for about 3 years and never returned to his village.  That acknowledgement led to this exchange between the Tribunal and the appellant;

17                  There was then some discussion about the LTTE’s attitude to the peace negotiations and other matters, including communications which the appellant had recently had with his mother and his sister who were still in Colombo.  However, at no point in the transcript of the appellant’s oral evidence did he indicate what conditions currently prevailing in Colombo were capable of inducing an objective fear of persecution in a young Sri Lankan male circumstanced as he was at the end of 1992.

18                  Against that background, I consider that the Tribunal was entitled to express itself as not satisfied that the appellant had a well-founded fear of persecution by the LTTE if he were to return to Colombo.  It was open to it, in my view, to take that course without adverting to evidence which affirmatively suggested that Colombo would be a place of safety for the appellant.  For the reasons explained at [4] above, the “no evidence” ground invoked by the appellant is only available, if at all, in respect of decisions under the Act to attack an affirmative finding of fact by the Tribunal, not its failure to be satisfied as to a specified matter.

19                  I also accept the submission of Mr Gilbert of Counsel for the Minister that the Tribunal’s finding that the appellant would adequately be protected by the authorities in Colombo was supplementary to, and independent of its finding that the appellant’s “tangential” links in the past with opponents of the LTTE were not likely now to attract to him any adverse or persecutory attention from the LTTE.  That was the primary reason for the Tribunal’s non-satisfaction that the appellant had a well-founded fear of persecution for a Convention reason.

20                  Moreover, it was open to the Tribunal, in assessing whether the appellant had a well-founded fear of persecution if he were returned to Colombo, to take account of the fact implicitly conceded by the appellant in his evidence that his mother and sister had apparently been able to live in that city for 6 years or more without having been subjected to persecution. 

Conclusion

21                  Although it seems that the present appeal has been argued somewhat differently from the way in which the appellant’s case was put to the learned Federal Magistrate, for the reasons which I have endeavoured to explain, the appellant has still failed to demonstrate jurisdictional error by the Tribunal.  Accordingly, the appeal must be dismissed with costs.

Associate:

Dated:              13 June 2006