Anver v Minister for Immigration and Multicultural Affairs

[1999] FCA 1627

FEDERAL COURT OF AUSTRALIA

Anver v Minister for Immigration & Multicultural Affairs [1999] FCA 1627

OMAR LEBBE RAFEEDEEN MOH ANVER v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 643 of 1999

LINDGREN J
18 NOVEMBER 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 643 OF 1999

BETWEEN:	OMAR LEBBE RAFEEDEEN MOH ANVER APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	18 NOVEMBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.              The application be dismissed.

2.              The applicant pay the respondent's costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 643 OF 1999

BETWEEN:	OMAR LEBBE RAFEEDEEN MOH ANVER APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	LINDGREN J
DATE:	18 NOVEMBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1. The applicant applies for review of a decision of the Refugee Review Tribunal (“the Tribunal”) given on 31 May 1999 affirming a decision of a delegate of the respondent (“the Minister”) not to grant a protection visa. 

2. Section 36 of the Migration Act 1958 (Cth) (“the Act”) makes it a criterion for the grant of such a visa that the Minister, or on review the Tribunal, is satisfied that the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (compendiously, “the Convention”). 

3. The Convention defines a refugee for its purposes as any person who:

   “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country;  or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

4. The applicant claims to have a well-founded fear of being persecuted for reasons of imputed political opinion, is outside the country of his nationality, Sri Lanka, and is unwilling to avail himself of the protection of that country.

   Procedural background

5. Apparently the applicant was born on 14 November 1959 at Trincomalee, Sri Lanka.  He married on 8 September 1990 and has two children, a daughter born on 25 August 1992 and a son whose date of birth is given inconsistently in the papers as 25 February and 25 September 1995.  He arrived in Australia on 8 August 1995.  His wife and two children remain in Sri Lanka.

6. The applicant lodged his application for a protection visa on either 27 June or 1 July 1996 (the papers are inconsistent).  His claims were set out in a statutory declaration lodged with the Department of Immigration and Ethnic Affairs (“the Department”) on 18 December 1996, but dated 18 July 1996.  A delegate of the Minister refused the application on 4 June 1997.  The applicant filed an application for review with the Tribunal on 9 July 1997.  On 4 January 1999, Mr Karp, solicitor of McDonells, forwarded a written submission on the applicant's behalf to the Tribunal.  The Tribunal conducted a hearing on 11 January 1999.  It gave the decision referred to earlier on 31 May 1999. 

7. The applicant's claims are to be found in his statutory declaration of 18 July 1996, his solicitor’s letter of 4 January 1999 and such evidence as he gave to the Tribunal at the oral hearing held on 11 January, 1999.

   The applicant’s claims

8. I will outline the applicant’s claims based substantially on his statutory declaration. His childhood appears to have been spent in Trincomalee.  His father was a businessman selling rice, vegetables and other food items which provided a reasonable living for the family.  In 1986 the applicant left school.  His father was ill and the applicant took over the running of the shop. 

9. On 15 December 1988 two members of the Liberation Tigers of Tamil Eelam (“LTTE”) came to the shop and accused the applicant of doing business with the Sri Lankan Army.  In fact the Army had established a new camp about a quarter of a mile from the shop, and from mid 1988 soldiers had come to buy rice, vegetables, chilli and potatoes from the applicant's shop as well as from others.  As well, the applicant made deliveries to the Army camp about every three days.  The LTTE also accused the applicant of giving information about the LTTE to the Army.  They directed the applicant to cease doing business with the Army and threatened to kill his family if he did not obey.  But the applicant was afraid to comply because another businessman had been shot by the Army after he had stopped supplying it.  Accordingly, the applicant continued to deal with the Army as previously. 

10. The first matter of particular significance in the applicant's claims occurred in January 1989.  On 25 January the Army conducted a round-up in the village.  On 27 January the applicant left to buy stock for his shop and in his absence a boy was looking after the shop. The applicant was told later that four LTTE members had come with arms to the shop looking for the applicant and that when the boy told them he did not know where the applicant was, they killed him. 

11. The applicant was told of this in Trincomalee where he was doing business.  On 28 January 1989 he left by bus for Kandy.  This marked the beginning of a lengthy period during which the applicant lived at Kandy.  Apparently at first he stayed at a mosque there.  After about a week he was told that the LTTE had passed a death sentence on him on the basis that he had been an informer against them.  On 5 February 1989 the LTTE came to his house searching for him.  They inflicted damage on things in the house and took jewellery and money.  As well, they assaulted his younger brother and his father.  On 7 February 1989 his family joined him in Kandy.

12. For about two months the applicant and his family were managing on the money he had brought from Trincomalee, but then the trustee of the mosque arranged for the applicant to obtain employment.  His employer was Mr A.M. Buhardeen.  Like the applicant, he was a Muslim.  All the other employees were Singhalese.  The applicant was the only Muslim employee.  The applicant worked in Mr Buhardeen’s quarry, breaking concrete.  Apparently he then began working in the quarry store and had some responsibility in respect of his employer’s gunpowder, dynamite, detonators and wire.  In fact, he supplied such equipment to the quarry workers in connection with their work. 

13. The applicant worked in that job from 1989 to July 1995, a period of some six years.  He and his family became part of the Muslim community in Kandy, attended the mosque there regularly, and participated in community activities in the mosque grounds.  They were the only Muslim refugees from Trincomalee in the area.  Apparently the six year period was by and large a satisfactory one, although the applicant and his family suffered financial hardship.

14. On 8 September 1990, the applicant married a Muslim from Kandy.  I referred to the dates of birth of their two children earlier.

15. The applicant's case turns on events of 1995.  There were two of these, both related to explosives.  They occurred in February/March and July 1995.

16. The first event concerned two Tamil “boys” from Trincomalee.  They met the applicant in the market at Kandy in February 1995.  They told the applicant they supplied fish to the market.  About a month later, on 24 March 1995, the two boys approached him at his place of work and asked for explosives to help them catch fish, offering payment.  He declined their request. That evening two policemen came to the applicant's residence with the two Tamil boys handcuffed.  They told the police officer that the applicant had supplied them with explosives.  The police arrested the applicant and took him to Matale police station. 

17. There followed events at the police station on which the applicant relies.  The police pointed to him and used the word “Kotiya”, which is Singhalese for “Tiger”.  The officer in charge spoke to the two Tamil boys who repeated their allegation.  The police assaulted the applicant, demanding that he “tell the truth” about the explosives allegation.  He was in the police station for three days.  On one occasion he was burned on the leg with a cigarette butt by the police and he was assaulted several times. 

18. On the morning of the third day his employer, Mr Buhardeen, came to the police station with a “proctor” who spoke to the applicant.  After about an hour the applicant was released and he was told later by Mr Buhardeen that money had been paid for his release.  A condition of the release was that he had to report to the police once a week.  When he returned home he was sick and could not return to work for some fifteen days. 

19. The second explosives incident occurred on 10 July 1995.  A Mr Nathan, a friend of Mr Buhardeen, came to see him.  Messrs Buhardeen and Nathan came to the applicant and Mr Buhardeen asked him to parcel up three kilos of explosives and give them to Mr Nathan.  The applicant did so but felt uneasy about the matter.

20. Three hours later Mr Buhardeen's son told the applicant that his father and Mr Nathan had been arrested.  The applicant was afraid and did not go home but immediately caught a bus to Colombo where he went to the house of his wife's brother and told him what had happened.  The brother-in-law went to Kandy the next day and told the applicant's family there what had occurred.  They told the brother-in-law that the police had come in the night and were searching for the applicant.  When the brother-in-law returned to Colombo he told the applicant that Mr Buhardeen had told the police that the applicant had given the explosives to Mr Nathan. 

21. It was arranged through the brother-in-law that a visa would be procured for the applicant.  An agent was paid Rs 350,000 to arrange a visa to Australia, an airline ticket and an airport clearance.  The applicant left on 7 August 1995 and arrived here on 8 August 1995. 

    The Tribunal’s Reasons for Decision

22. The Tribunal made a number of findings which can be summarised as being to the effect that the interest of the police in the applicant was because of the alleged commission of crimes.  It is noteworthy that there was before the Tribunal a summons issued on 18 October 1995 by the Magistrates’ Court at Kandy requiring the applicant to appear on 21 November 1995 to answer a charge of having supplied explosives on 10 July 1995 without a permit.  The Tribunal was not satisfied that the authorities in Sri Lanka viewed the applicant as a supporter of the LTTE in relation to either of the two explosives incidents or in relation to any other event.  The Tribunal found that certain disparaging comments attributed to the police was part of the process of interrogation of all suspects.  The Tribunal found it unlikely that the authorities would believe that a non-Tamil Muslim was an active member or supporter of the LTTE. 

23. In relation specifically to the first incident (the two boys) the Tribunal found that the applicant was taken into custody for questioning because he was a suspect in a criminal case and that any mistreatment of him while in custody was due to that suspicion.  The Tribunal noted that the police had referred to him while he was in custody as a “thamby” or a Muslim as well as having used other terms of abuse. 

24. In relation to the second incident (Mr Nathan) for much the same reason the Tribunal considered that the pursuit of the applicant was due to what the authorities perceived to be his role in the supply of the explosives. 

    The present application for review

25. The applicant pursues three grounds on the appeal.  These are:

    1.that the Tribunal did not observe procedures which it was required by the Act to observe in connection with the making of its decision (s 476(1)(a) of the Act);

    2.that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of it to the facts as found (s 476(1)(e) of the Act); and

    3.that there was no evidence or other material to justify the making of the decision (s 476(1)(g) of the Act).

26. Counsel has made written and oral submissions on behalf of the applicant but I am not persuaded that any of these grounds are made out.  Shortly, if there was any error it was one of fact as to the motivation of the police.  The important point is that it was open to the Tribunal to conclude, whether rightly or wrongly as a matter of objective fact, that any interest which the authorities had in the applicant was due to the criminality which they supposed to be involved in the two explosives incidents.

27. The applicant submits that it was an error for the Tribunal not to proceed by first enquiring if the applicant had a subjective fear and then enquiring whether such subjective fear as he had was well founded and based on a Convention reason.  But the Tribunal is not required in all cases to proceed according to that formula.  The Tribunal was entitled to conclude, as it did, that on the material before it the only well-grounded fear which the applicant could possibly have was one for something other than a Convention reason.

28. The applicant submitted that the Tribunal erred by failing to deal with certain evidence that was before it, but the Tribunal is not required to give reasons for not being persuaded by every piece of evidence pointing against the conclusion that it reaches: see, for example, Addo v Minister for Immigration & Multicultural Affairs [1999] FCA 940 (at [15]). I do not imply that the materials to which counsel for the applicant referred are inconsistent with the result which the Tribunal reached.

29. Counsel for the applicant referred to other matters, such as the fact that the Tribunal did not explain why, in certain respects, it did not adhere to certain things said by the delegate of the Minister, but the hearing before the Tribunal is a fresh hearing and there is no obligation on the Tribunal to deal with the matters mentioned in the document recording the delegate's decision.

    Conclusion

30. No error of a kind referred to in s 476 of the Act is made out. Accordingly, the orders of the Court are that:

    (1)  the application be dismissed;

    (2)  the applicant pay the respondent's costs.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:             22 November 1999

Counsel for the Applicant:	Mr J Patel
Solicitor for the Applicant:	Jamnadas & Associates
Counsel for the Respondent:	Mr S Lloyd
Solicitor for the Respondent:	The Australian Government Solicitor
Date of Hearing:	11 November 1999
Date of Judgment:	18 November 1999