FEDERAL COURT OF AUSTRALIA

Applicant M153 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 820

Applicant M153 of 2004 v Minister for Immigration [2006] FMCA 42 affirmed

Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 considered

SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 applied

VWAL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 266 applied

SZAPC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 995 mentioned

APPLICANT M153 OF 2004 and ORS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

VID 125 OF 2006

SUNDBERG J

30 JUNE 2006

MELBOURNE

THE COURT ORDERS THAT:

1.             The appeal be dismissed.

2.             The appellants pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

BACKGROUND

1                     The Refugee Review Tribunal affirmed the decision of a delegate of the respondent not to grant the appellants protection visas. An application for review of that decision was dismissed by the Federal Magistrates Court: Applicant M153 of 2004 v Minister for Immigration [2006] FMCA 42. This is an appeal from that decision. Pursuant to s 25(1AA) of the Federal Court of Australia Act 1976 the appeal is to be heard by a single judge.

2                     The background facts and the first appellant’s claims are set out in the Magistrate’s decision, and in more detail in the Tribunal’s reasons. The second, third and fourth appellants are the first appellant’s wife and children. Their claims are dependent on his. I will refer hereafter to “the appellant” alone.

FIRST GROUND OF APPEAL

3                     There are three grounds of appeal. The first is that the Magistrate erred in finding that the Tribunal “did not fail to consider that the basis of the appellant’s fear of extortion by the LTTE was a Convention related reason”. The contention before the Magistrate was that in respect of the appellant’s claim that he feared that the LTTE would seek to extort money from him upon his return to Sri Lanka, the Tribunal failed to consider that his claim was that extortion would be by reason of his Tamil ethnicity. It was also said that the Tribunal failed to consider whether such extortion would be by reason of the appellant’s membership of a particular social group, namely Tamils returning to Sri Lanka from overseas or Tamils perceived to have money.

4                     The appellant relies on the following passage from the Tribunal’s reasons to support this ground:

“The applicant is concerned that the LTTE will seek to extort money from him upon return because he would be thought to have money given that he has worked abroad for so long. There has been no such approach to him in the past but if this were to occur I do not consider that the evidence indicates that it would be anything other than an opportunistic grab for money. What the applicant seems to me to fear is analogous with the circumstances described in Ram v MIEA (1995) 57 FCR 565. In his judgment (at 569‑570) Burchett J stated:

Plainly, extortionists are not implementing a policy, they are simply extracting money from a suitable victim. Their forays are disinterestedly individual …. [The appellant] does not fear persecution for reasons of membership of a particular social group, but extortion based on a perception of his personal wealth and aimed at him individually.

I do not consider that the evidence about the appellant’s circumstances indicates that there is a real chance that the applicant’s race, religion, nationality, membership of a particular social group or his actual or imputed political opinion would be the essential or significant reason for any extortion demands which he may face upon return from the LTTE, rather the essential and significant reason for such treatment would be his perceived possession of money. Consequently such treatment does not constitute persecution within the meaning of the Refugees Convention.”

5                     It is true that in that passage the Tribunal does not say that the claim was that the appellant feared extortion because he was Tamil. However, a reading of the Tribunal’s reasons as a whole makes it perfectly clear that that was the claim it was addressing.

6                     The appellant’s whole case for a protection visa was founded on his Tamil ethnicity. Under the heading “The Applicants’ Claims” the Tribunal recorded claims that

·                 the appellant was a male of Tamil ethnicity,

·                 the LTTE had details of all Sri Lankan Tamils living in Sri Lanka and in foreign countries

·                 the Army was reported to be killing Tamil civilians.

It also recorded that

·                 it had raised with the appellant information indicating that Tamils were subjected to less checking than before

·                 the appellant’s adviser at the first Tribunal hearing submitted that the appellant faced persecution because he is a Tamil from Jaffna

·                 in a submission to the current Tribunal it was put that LTTE cadres were abducting Tamil youths and extorting money from Tamils, that as a Jaffna Tamil the appellant would not be able to live in any Sinhalese areas, and that more than a hundred young Tamils had been taken in for questioning and thirteen of them were arrested.

It is clear from the foregoing that all these claims are related to the appellant’s fears based on his Tamil ethnicity.

7                     The Tribunal then examined numerous items of country information, including material submitted by the appellant, relating to mistreatment of Tamils in Sri Lanka and the improving position of Tamils there. This reinforces the view that the Tribunal’s attention was specifically directed to fears held by the appellant based on his Tamil ethnicity.

8                     Immediately after its exposition of the country information, the Tribunal introduced its “Findings and Reasons” with the words “the applicant is of Tamil ethnicity”.

9                     The Tribunal had before it a submission from the appellant’s solicitors which contained these passages:

“The Applicant states that it is well known that LTTE cadre had infiltrated in Colombo Metropolitan and are engaged in abduction of Tamil youths and extortion from Tamil people are continuing. The Applicant fears that he would be definitely abducted by the LTTE if he returns back and stayed in Colombo.

According to DAFT CX 82735 the LTTE activities include ‘child recruitment, hostage taking and extortion …. Its child recruitment activities which according to UNICEF are ongoing in all areas of the north and east, are limited to Tamils and include retaliation activities in which family members are abducted as substitutes for children who refuse to join the LTTE. There are also reports that the LTTE has increased its harassment and extortion activities against Tamils in Colombo in recent months.”

It was thus aware that the appellant claimed to fear extortion by reason of his being a Tamil.

10                  The Tribunal’s ultimate conclusion, at the end of its reasons, is that there is no real chance of serious harm amounting to persecution “because he is Tamil” or “because of any associated real or imputed political opinion”.

11                  The Tribunal’s statement (recorded at [4]) that it did not consider the extortion would be anything other than an opportunistic grab for money, in the context recorded at [6] to [10], is to be understood as a rejection of the reason the appellant advanced for the extortion, namely that he is a Tamil. The reference to Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 is unexceptionable. There it was claimed that the appellant was a member of a class of wealthy Sikhs who were liable to extortion. The Full Court held that because the extortion was not based on membership of that class but purely on opportunism, there was no Convention basis. That is what Burchett J said at 569‑570. The Tribunal was saying that just as in Ram the extortion was not because the appellant was a wealthy Sikh, so in this case it was not because the appellant was a Tamil. In each case the extortion was opportunistic.

12                  It was not put to the Tribunal that the appellant was a member of a particular social group. However the Tribunal did say it was not satisfied that there was a real chance that the appellant’s membership of a particular social group would be the essential and significant reason for any extortion demands. The appellant did make social group claims before the Magistrate. For the reasons his Honour gave in connection with the appellant’s Tamil ethnicity, the social group claim, based as it was on Tamil ethnicity (see [3]), had to fail. See pars 20 to 22 of the Magistrate’s reasons.

13                  The Tribunal did not fail to address the case put by the appellant. The Magistrate did not err in so holding.

THE SECOND GROUND

14                  This is that the Magistrate erred in finding that the Tribunal’s decision with respect to the appellant’s detention and torture “was not based on findings for which there was no information”. This ground is directed to the Tribunal’s refusal to accept that the appellant was arrested, detained, interrogated and tortured in December 1998 on suspicion of associating with the LTTE. The Tribunal gave four reasons for this conclusion. The first is not attacked. It is that

“independent information indicates that Tamils have been subjected to checking in Colombo for many years. As is apparent from the account of relevant information outlined above, it was young Tamils from the north or east of the country without a plausible reason for their presence in Colombo who were likely to be taken into custody for further questioning or to establish their bona fides. This does not mean that other people are not, but it does indicate the importance attached to identity documents and weighs against the claim that the applicant was not allowed to show his passport.”

The reference to the passport is to the appellant’s claim that after he had been detained, the authorities refused to allow him to show his passport to verify that he had come from Brunei where he had been working.

15                  Before proceeding to the Tribunal’s other reasons that are under attack, it is convenient to refer to some authorities on “no evidence” or “no information” submissions in the context of jurisdictional error. In SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 at [18] to [20] a Full Court said:

“But the essence of the argument was that there was no information before the Tribunal from which it could realistically draw the conclusion that there was a government in control of the place from which the appellant came that could or would protect the appellant from persecution for a Convention reason.

This argument, if it were made out, would be sufficient to establish that the Tribunal had made a ‘jurisdictional error’ so as to found jurisdiction in this Court to intervene. If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error: see Australian Broadcasting Tribunal v Bond(1990) 170 CLR 321 at 355‑357.

…

On the other hand, if there is sufficient evidence or other information before the Tribunal on which it could reach the conclusion it did then it is for the Tribunal to determine what weight it gives to that evidence. Indeed, unless the relevant fact can be identified as a ‘jurisdictional fact’, there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Attorney‑General (NSW) v Quin(1990) 170 CLR 1 at 35‑36. It is for the Tribunal to determine the merit of the claim. The line between merits review and jurisdictional error may not be a ‘bright line’, but it is nevertheless an essential one: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.”

16                  In VWAL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 266 at [24], after quoting the second above paragraph from SFGB, Ryan J said:

“by that passage I take their Honours to mean that a positive finding, in the absence of any supporting evidence, of the existence of a fact which is a critical step in deciding the ultimate matter as to which the Tribunal has to be satisfied, may signify jurisdictional error.”

(Emphasis in original.)

Why his Honour made this clarification appears from [22] and [26]:

“it is not a legal or jurisdictional error for the Tribunal, in evaluating the assertions of fact relied on by an applicant as giving rise to a well-founded fear of persecution, to reject one or more of those assertions as ‘unclear’, ‘incoherent’ or ‘implausible’. That is so even if there is no identifiable piece of evidence which tends against acceptance of the relevant assertion. As Gleeson CJ and McHugh J indicated [in MIMA v Eshetu (1999) 197 CLR 611 at 629], different minds may form different views about issues which arise for determination on the way to resolving the ultimate question. The fact that a reviewing Court might disagree, even strongly, with a conclusion reached by the Tribunal on a question on the way to determining the ultimate question does not import jurisdictional error on the part of the Tribunal.

…

In the present case the impugned rejection by the Tribunal of certain of the appellant’s assertions of fact about assistance rendered to the LTTE or the LTTE’s knowledge of the Army’s intention to search her home did not depend on any inference from other facts. It resulted merely from a failure to attain a state of satisfaction that the assistance had been rendered or that the LTTE had the prior knowledge imputed to it. The fact that the rejection may appear to a reviewing court to be illogical is not to the point.”

17                  The Tribunal’s rejection of the appellant’s claim that in December 1998 he was arrested, detained, interrogated and tortured on suspicion of associating with the LTTE (the December events) was critical to its conclusion that there was no real chance that he would face serious harm amounting to persecution because he is a Tamil, because of any associated real or imputed political opinion or because of any of the other reasons in the Convention if he was to return to Sri Lanka. It was the Tribunal’s finding about the December events that led it to reject his claims that

·                 his relative was arrested, detained and has not been heard of since

·                 his photographs and fingerprints were held by the police in connection with suspected links to the LTTE

·                 he was suspected of having such links

·                 the LTTE will seek to harm him because he did not assist in the relative’s release

·                 the December events would lead him or his wife and children to face further investigation or harm at the hands of the authorities.

18                  The question then is whether any of the impugned reasons that caused the Tribunal to reject the appellant’s account of the December events involves a positive finding, in the absence of any supporting evidence, of the existence of a fact which is a critical step in the Tribunal’s ultimate conclusion.

19                  The second reason is expressed as follows:

“that the applicant was released upon payment of a bribe after two days indicates to me that he was not seriously suspected of having connections to the LTTE. By 1998, the Sri Lankan army and the LTTE had been long engaged in a war which had included many terrorist attacks on political and civilian targets in Colombo. The authorities were determined to contain the LTTE and acted brutally in their efforts to do so. There are corrupt police who may consider releasing a suspect upon payment of a bribe, but I consider that the intensity of the conflict indicates that this would have been a rare occurrence.”

The facts in the first sentence are those asserted by the appellant. The conclusion reached on the basis of these facts was open to the Tribunal. The second and third sentences are uncontroversial. It is the final sentence upon which the appellant fastens, contending that there was no evidence that it was rare for police to release a suspect on payment of a bribe. In my view the natural meaning of the four sentences taken as a whole is that the first contains the reason itself, the next two lead up to what is said in the fourth, which merely makes the immaterial point that the release in this case was a rare occurrence. On that reading, it is irrelevant that, if it be true, there was no evidence that it was rare for police to release a suspect on payment of a bribe. No jurisdictional error is involved in the Tribunal’s second reason.

20                  The third reason is that the Tribunal

“found the applicant’s claim about an agent being engaged who knew which Customs and Immigration officers were open to inducements and that such inducements were paid to allow the applicant to leave the country is a fabrication. The practicalities of such an arrangement at an airport extremely sensitive to security considerations weighs heavily against the credibility of the scenario described by the applicant.”

21                  If the third reason had consisted solely of the first sentence, the reason would not have been susceptible to attack on the no evidence ground. The Tribunal’s rejection of the appellant’s account was not dependent on any fact for which there was no evidence. In his visa application the appellant said that the owner of the lodge where he had been staying in Colombo suggested he contact an agent to bribe the Immigration and Customs officers at Colombo Airport if he had problems at the time of departure. He contacted an agent and paid the bribe. The Tribunal member appears to have been suspicious about this unparticularised account, and at the hearing asked the appellant how the bribery at the airport had been arranged. The appellant said the agent had known which officials were open to such inducements. He had been guided through the process by a person who was introduced by the lodge manager’s assistant who had taken him to the airport. Having heard the appellant’s explanation about the bribery arrangements, the Tribunal did not accept it, calling it a “fabrication”, that is, invented and untruthful.

22                  However the Tribunal went on to say that the practicalities of such arrangements at an airport extremely sensitive to security considerations weighs heavily against the credibility of the appellant’s scenario. The appellant says there was no information establishing that the airport was extremely sensitive to security considerations. The Tribunal found that by 1998 the Sri Lankan army had long been engaged in a war that had included many terrorist attacks on political and civilian targets in Colombo, and that the authorities were determined to contain the LTTE and acted brutally in their efforts to do so. These findings were not, and could not be, challenged. The wealth of material before the Tribunal amply justified them. Further, there was evidence of frequent suicide bombings and grenade attacks. One report speaks of the peace process (February 2002), and records that before then a named informant was accustomed to avoiding crowded areas out of fear of suicide bombings.

23                  Material submitted by the appellant claimed that Tamils leaving Sri Lanka and those returning there are arrested at Colombo airport on the assumption that they provide funds to the LTTE. He submitted a report entitled “Tamils detained for attempting to go abroad. Airport Arrests” which contains this passage:

“Human Rights agencies in Colombo say that Tamils [are] being arrested at Colombo airport, even if they have legally obtained travel documents to go abroad. Colombo Tamil newspaper Virakesari says that around 200 Tamils arrested by police at the airport are detained in Negombo and Welikada prisons, many under the Prevention of Terrorism Act.”

24                  The appellant also relied on a report that all deportees arriving at Colombo airport are detained for questioning by the CID. These checks are in addition to the normal immigration checks. Another report gives examples of such detentions occurring in September 1998. Other reports are to the same effect.

25                  The appellant’s material contained many references to the bombing of Colombo Airport in July 2001. Although this was after the appellant’s departure from Sri Lanka, it indicates that the airport was regarded by the LTTE as a place where they could cause maximum havoc.

26                  In summary, the above material discloses

·                 many terrorist attacks on political and civilian targets in Colombo

·                 frequent suicide bombings in Colombo

·                 a consequent fear of venturing into crowded spaces

·                 the existence at the airport of immigration and CID checks on outgoing and incoming Tamils

·                 the arrest at Colombo airport of Tamils entering and leaving the country

·                 the bombing of the airport itself in July 2001, confirming that the LTTE regarded the airport as a place where they could cause maximum havoc.

In the light of that information it was open to the Tribunal to infer that the airport was extremely sensitive to security considerations.

27                  The appellant also claims there was no evidence that officials at the airport were not susceptible to bribes, and points to evidence that bribery of officials is widespread in Sri Lanka. As indicated at [21], the Tribunal did not proceed on the basis of factual findings to that effect. Having heard the applicant, it did not believe his story that his agent knew which officials would take a bribe and that a bribe was paid by the agent.

28                  The appellant’s attack on the Tribunal’s second and third reasons for its conclusion about the December events based on the absence of evidence or information to support them fails. The attack is in truth an attempt to secure merits review.

29                  The appellant’s written submissions (par 41) state that the second and third reasons

“were criticised by the appellant because they involved findings of fact for which there was no supporting evidence, not because they were illogical or (except in the sense referred to in SZAPC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 995 at [58]) irrational.”

30                  The appellant relied on the observations of Madgwick J in SZAPC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 995 at [57]‑[58]:

“It is a critical legal requirement that the determination should not be able to be characterized as ‘irrational, illogical and not based on findings or inferences of fact supported by logical grounds’.  My own shorthand paraphrase of this is that, in that minimal sense, the determination must be a rational one.

…

To my mind it is plain that, if an important finding has been made without evidence to support it, that circumstance may be relevant to the question of whether the determination exhibits such rationality.”

As appears from [19] to [28], I do not accept that the second and third reasons contain any positive finding, in the absence of any supporting evidence, of the existence of a fact which is a critical step towards the Tribunal’s ultimate conclusion.

31                  The Tribunal’s fourth reason is not attacked on the basis of no evidence, but on the ground of irrationality.

THE THIRD GROUND

32                  This is that the Magistrate erred in finding that the Tribunal’s decision with respect to the appellant’s detention and torture was not based on findings that were illogical or irrational.

33                  The Tribunal’s fourth reason is expressed as follows:

“Finally, I found the applicant’s explanation of his wife and children remaining at the lodge after his departure so as to see her parents who were coming down from Jaffna also weighs heavily against the credibility of his claims: if he was seriously suspected of associating with the LTTE as he claims to have been and to have had to make a hasty and assisted escape from Colombo, then his wife, staying at the same lodge and so, according to the applicant, at risk of frequent checking and with a name and recent residence in Brunei in common with the applicant, would in my view have been at risk. A person who had been through the experience claimed by the applicant would have known this and in my view been unlikely to leave her and the children in Colombo to await the visit of her parents notwithstanding the assurance of the lodge manager.”

34                  Evidence before the Tribunal disclosed the following information. The appellant’s wife was also a Tamil. Tamil women were targeted as well as men. The appellant’s and his wife’s national identity cards disclosed their places of birth and residential address in Jaffna. The security forces use the identity cards as the main tool in identifying LTTE suspects in Colombo. If the place of birth or residence are shown as in the north or east of the country, the forces suspect the card holder of having LTTE connections. When the appellant was detained in December, he and his family were all staying at the same lodge.

35                  The Tribunal’s findings in the fourth to eighth lines of the passage at [33] were open to it on the evidence.

36                  The Tribunal thought that the appellant’s acquiescence in his wife’s decision that she and the children should run the risk of remaining in Colombo suggested that neither thought the risk was serious, thus casting doubt on the appellant’s account of the December events. It may be that another view could be held, namely that the appellant left without his family because he was at greater risk than they were. But the availability of that other view does not brand the Tribunal’s view irrational. I do not accept the appellant’s contention that the Tribunal treated the wife and children as commodities, so that he could have taken them with him, even though the wife did not want to leave without seeing her parents. That was not what the Tribunal said. Nor would it have accorded with the evidence. Rather it took the view that it was strange that he would leave when they would not. This is another attempt at merits review: to have the Court adopt the appellant’s account of what transpired rather than the Tribunal’s findings.

CONCLUSION

37                  None of the grounds of appeal has been made out. The appeal must be dismissed.

Associate:

Dated:              30 June 2006