Applicant MK v Minister for Immigration and Multicultural Affairs
[2000] FCA 881
•29 June 2000
FEDERAL COURT OF AUSTRALIA
Applicant MK v Minister for Immigration & Multicultural Affairs
[2000] FCA 881MIGRATION – application for protection visa – challenge to Tribunal’s findings of fact not reviewable under Part 8 of Migration Act 1958 (Cth) – surmise and conjecture as to possible risk not sufficient in the circumstances to give rise to “well-founded fear of persecution”.
APPLICANT MK & APPLICANT KK v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
V 745 of 1999
WEINBERG J
29 JUNE 2000MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 745 OF 1999
BETWEEN:
APPLICANT MK
FIRST APPLICANTAPPLICANT KK
SECOND APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
WEINBERG J
DATE OF ORDER:
29 June 2000
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicants 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
VICTORIA DISTRICT REGISTRY
V 745 OF 1999
BETWEEN:
APPLICANT MK
FIRST APPLICANTAPPLICANT KK
SECOND APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
WEINBERG J
DATE:
29 JUNE 2000
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
This is an application under Pt 8 of the Migration Act 1958 (Cth) (“the Act”) to review a decision of the Refugee Review Tribunal (“the Tribunal”) made on 26 November 1999. On that date the Tribunal affirmed a decision made by a delegate of the respondent on 2 July 1997 that the first applicant, his wife, and their two children were not entitled to the grant of protection visas.
Background
The first applicant (“the applicant”) is a Sri Lankan national of Tamil ethnicity. He arrived in Australia on 28 March 1997, having previously visited this country on a number of occasions. Together with his wife, who is the second applicant, he lodged an application for a protection visa on 16 May 1997. As noted above, that application was refused on 2 July 1997.
Prior to his arrival in Australia, the applicant had been employed as bank manager in Colombo. He claimed that by reason of being a Tamil he had been subjected to various forms of discrimination during his formative years. He acknowledged, however, that he had ultimately overcome many of the difficulties with which he had been confronted.
The applicant claimed that because he was a Tamil he had, over the years, been questioned by police on many occasions. His home had been about half a kilometre from the Sri Lankan President’s residence, and was also close to a Hindu temple which he visited on an almost daily basis. He claimed that he had become friendly with a priest at the temple. That priest had originally come from Jaffna, and in 1996 moved into the temple because the house which he had occupied had been sold. The priest confided to the applicant that he had been compelled to move from Jaffna because, while there, he had provided shelter at his temple to members of the Liberation Tigers for Tamil Eelam (“LTTE”). The priest had told the applicant that he had been questioned by the authorities about his activities in Jaffna.
The applicant claimed that in or about June 1996 the police had made enquiries with his employer, and had checked his personal files. The applicant also said that plain clothes police had questioned his neighbours about him.
The applicant claimed that in late February 1997 the priest told him that two LTTE members that he had once helped in Jaffna had demanded that he again assist them in Colombo. The priest had allowed them to stay at the temple. On two occasions the priest had allowed two other boys to stay there as well.
The applicant said that in March 1997 the priest asked him if he could stay at the applicant’s home for a week. The applicant had agreed. He had registered the priest’s stay at his home with the police, as he was required to do. The applicant claimed that during the priest’s stay a Tamil boy had come to the house, and asked for the priest. The applicant had told the boy that the priest was not there. The boy returned later that night. When told again by the applicant that the priest was not there the boy had produced a gun and demanded to search the premises. Eventually the boy located the priest, and took him away.
Subsequently the priest returned and explained to the applicant that the boy had insisted that he open the temple so that one of the boy’s friends could sleep there that night. The next day the priest left the applicant’s house. He never returned. Thereafter police began searching the area, and seeking information about the priest’s whereabouts. Apparently the priest was suspected of having connections with the LTTE. The applicant was questioned, but beyond acknowledging that the priest was known to his family, said nothing about anyone having been given shelter at the temple, or about the incident involving the boy with the gun.
In around March 1997 the police searched the applicant’s house. The applicant was detained overnight. He was questioned again about the priest, and about the priest’s contacts. The applicant again said nothing about the boy having come to his house, or about his having been threatened by the boy at gunpoint. The police then released the applicant, having ascertained that he held a senior position with the bank, and that he was regarded as being highly respectable. Shortly thereafter the applicant left Sri Lanka for Australia.
The Tribunal’s findings
The Tribunal accepted the applicant’s account of the events leading up to his departure from Sri Lanka. It accepted, in particular, that over a period of time his house had been subjected to various security checks. The Tribunal stated that it considered that the primary reason for these security checks had been the proximity of the applicant’s house to the presidential residence. The Tribunal accepted that the applicant had been questioned by security forces in 1996. It noted, however, that he had subsequently been issued with a new passport and permitted to come to Australia. The Tribunal also noted that the applicant had retained his senior position with the bank, and had been sent abroad as its representative. The Tribunal concluded on the basis of this material that the applicant had not been suspected, in 1996, of having any links with the LTTE.
The Tribunal also accepted the applicant’s account of having permitted the priest to stay with him, and his account of the priest having told him that he had sheltered boys from Jaffna who were involved with the LTTE. The Tribunal accepted that one of these boys had come to the applicant’s house in March 1997, and had threatened the applicant at gunpoint. It accepted that the priest had left the applicant’s house the following day, just as the applicant had claimed. The Tribunal accepted that the applicant had been questioned subsequently by the police, and that he had said nothing to them about the incident involving the boy. The Tribunal noted, however, that the applicant had not been harmed thereafter by the police, and that he had been released after being questioned. The Tribunal noted further that the applicant’s wife had remained in Sri Lanka for another month. There was no evidence to suggest that she was in any way questioned or harassed by the police during that period.
The Tribunal then dealt with the events which had occurred after the applicant left Sri Lanka. It said:
“He claims that further enquiries have been made about his whereabouts since he left and that the temple was closed and security increased soon after his departure. It is plausible that the police may suspect the priest has information about LTTE operations or was even involved in its activities and it is plausible that, after he left, they believed the Applicant may be able to further help in their investigations, although there is no evidence that they have taken formal or legal steps to seek evidence from him. However, the Tribunal does not accept that the activities at the temple or inquiries about his whereabouts since his departure are an indication that he faces persecution should he return to Sri Lanka. The Applicant had no affiliation with the LTTE and the Tribunal remains satisfied that the police know that to be the case, as established on previous occasions when he has come to their attention for various reasons. If they have any interest in him, the Tribunal concludes that it is merely to help in investigations and not because they impute him to have political opinions that suggest he sympathises with the LTTE or for any other Convention reason.
It was submitted that if he now told the truth about the visit of the Tamil boy with the gun, the Applicant might be jailed under emergency regulations and that there is a nexus to the Convention because the police investigations would be motivated by political opinions or actions affiliated with the LTTE. In the unlikely event that the Applicant is punished because he failed to disclose information during previous investigations, the Tribunal finds that such punishment would be imposed because the Applicant impeded the course of justice and would not be motivated by any of the Convention reasons.”
The Tribunal then dealt with matters of a more general nature, including the position of Tamils in Sri Lanka. The Tribunal then concluded:
“The Applicant in this case was born, educated and employed in Colombo. He speaks Sinhalese, has a relatively senior job and described his status as “responsible” and “respectable”. He is 37 years old and does not fall within the group of youths or young men who might be at increased risk, and he has been questioned on two occasions and released without being harmed. There is no evidence that other family members have been harmed by security officials, even when they have enquired about the Applicant’s whereabouts. The Applicant has an identity card and a passport to indicate he was born in Colombo, has always lived in the family house a kilometre from the presidential residence, has registered guests with local police and has experienced many security checks without encountering harm. Despite a long history of high security measures in Colombo, the Applicant’s evidence discloses that he has not been harassed by the authorities on account of real or imputed LTTE connections or because he is Tamil or for any other Convention reason, despite being questioned in regard to security investigations.
The information from various sources, including his own evidence, leads to the conclusion that there is not a real chance the security forces or other government agencies will persecute him on account of his race or because he is suspected of affiliation with the LTTE. There is no evidence that his wife or children have been harassed in the past and, on the basis of the available information, the Tribunal also concludes there is not a real chance they will be persecuted in the foreseeable future.
The Tribunal recognises that Sri Lanka is beset by ethnic and political difficulties and that its citizens live in an atmosphere of insecurity, fuelled by an ongoing war in the Northeast and sporadic terrorist attacks in Colombo and other urban centres. It sympathises with the Applicant and his wish to live in Australia with his spouse and children. However, in light of the information before it, it concludes that neither the Applicant nor members of his family unit have a well-founded fear of persecution for the reasons he has claimed or for any other Convention reason. The Tribunal is not satisfied that they are persons to whom Australia has protection obligations under the Refugees Convention and Protocol and, therefore, they do not meet the criterion for the purposes of granting protection visas.”
Grounds of review
The only grounds of review which were pursued before me were as follows:
“1.The decision involved an error of law being an incorrect interpretation of the applicable law contrary to s 476(1)(e) of the Act.
Particulars
The Tribunal misinterpreted the law relating to the definition of refugee for the purposes of the Act.
(a)It failed to properly interpret and/or apply the test of well-founded fear of persecution when having accepted the chance of the First Applicant being persecuted it failed to consider whether he might be disproportionately punished by reason of his race or imputed political opinion for impeding the course of justice …..
…
(c)It failed to properly interpret and/or apply the test of well-founded fear of persecution for reasons of actual or imputed political opinion in not recognising that the act of withholding critical information alone may lead to the imputation by the authorities of an adverse political opinion and thus on the information before it to the risk of detention and mistreatment.
2.The decision involved an error of law being an incorrect application of the law to the facts as found by the Tribunal contrary to s 476(1)(e) of the Act.
Particulars
The Tribunal misapplied the law relating to the definition of refugee for the purposes of the Act.
(a) The applicant refers to and repeats the particulars subjoined to paragraph 1.”
Conclusions
In my opinion there is no substance in either of the grounds of review which were pursued before me.
Turning first to ground 1(c), this ground is predicated upon the assumption that the authorities have become aware of the fact that the applicant withheld important information from them when he was questioned in 1997. There is nothing in the material before the Tribunal which supports the applicant’s contention that the authorities have become aware of this fact. The fact that no harm befell the applicant in the period immediately after the incident concerning the visit by the Tamil boy to his home strongly suggests that the police were not, at that stage, aware of the fact that the applicant had misled them about that matter. Moreover, there is nothing to support the applicant’s contention that the police must subsequently have discovered that he had withheld that information from them.
The applicant’s contentions in this regard are based on nothing more than mere surmise and conjecture. Assuming that it was open to the Tribunal to have drawn the inference for which he contends, it was at least equally open to it to have declined to do so.
Judicial review under Pt 8 of the Act does not encompass merits review. If the Tribunal made an error of fact of the type for which the applicant contends, that error is not amenable to review in this Court. Whether or not a particular inference which was open to be drawn should, in fact, have been drawn, involves nothing more than a question of fact. That question cannot be characterised as giving rise to a reviewable error of law.
If the police have not yet learned that the applicant did not cooperate fully with them when they questioned him in 1997, there is no foundation for his claim to refugee status. The applicant’s entire case is based upon that one assumption. Unless it can be shown that the Tribunal erred in failing to make that finding, and that that error is reviewable under Pt 8 of the Act, no error on the part of the Tribunal will be demonstrated.
Turning then to ground 1(a), this ground proceeds upon the assumption that it is realistically possible that the applicant will, at some time in the future, disclose to the authorities, whether voluntarily or otherwise, that he previously withheld from them information concerning the visit by the boy to his home. Whether the applicant reveals to the police that he misled them when questioned in 1997 is ultimately a matter for him. The possibility that he will do so, in circumstances where the police presently appear to have no knowledge whatsoever of the incident concerning the visit of the boy, is simply too remote to give rise to a “well-founded fear of persecution”.
Ground 2 merely restates, in a slightly different form, the matters relied upon in ground 1. Nothing more need be said about it.
The applicant’s position, and that of his family, plainly evokes sympathy. He was regarded by the Tribunal as having been honest and truthful. It is entirely understandable, given his circumstances, that he does not wish to return to Sri Lanka. There is nothing in the material before me, however, which suggests that the Tribunal fell into any error in dealing with his claim to a protection visa.
The application must be dismissed with costs.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg. Associate:
Dated: 29 June 2000
Counsel for the Applicant: Mr JA Gibson Solicitors for the Applicant: Erskine Rodan & Associates Counsel for the Respondent: Mr CG Fairfield Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 29 June 2000 Date of Judgment: 29 June 2000
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