Aruliah, Moses Arulthevasuthan v The Minister for Immigration and Multicultural Affairs

[1997] FCA 1018

FEDERAL COURT OF AUSTRALIA

MIGRATION - refugees - application for review of decision of Refugee Review Tribunal affirming decision of delegate to refuse a protection visa - whether Refugee Review Tribunal’s adverse view of the applicant’s credibility constituted an error of law - whether there has been a breach of s 420 of the Migration Act 1958 (Cth) and, if so, the effect of such a breach.

Migration Act 1958 s 420
1951 Convention Relating to the Status of Refugees

Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621, discussed and followed
Umberlebee v Minister for Immigration and Multicultural Affairs (Marshall J, 28 August 1997, unreported), considered
Khan v Minister for Immigration and Multicultural Affairs (Lockhart J, 4 August 1997, unreported), followed
Jovicic v Minister for Immigration and Ethnic Affairs (Goldberg J, 18 March 1997, unreported), applied
Vinh v Minister for Immigration and Ethnic Affairs (Goldberg J, 6 May 1997, unreported), considered

MOSES ARULTHEVASUTHAN ARULIAH v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

VG 41 of 1997

MARSHALL J
MELBOURNE
1 OCTOBER 1997

IN THE FEDERAL COURT OF AUSTRALIA	)
)
VICTORIA  DISTRICT REGISTRY	)  VG 41 of 1997
)
GENERAL DIVISION	)

BETWEEN:	MOSES ARULTHEVASUTHAN ARULIAH Applicant
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	1 OCTOBER 1997
WHERE MADE:	MELBOURNE

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The application to review the decision of the Refugee Review Tribunal of 7 January 1997 be dismissed.

1. The applicant pay the respondent’s costs of the proceeding, including reserved costs, if any.

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	)   VG 41 of 1997
)
GENERAL DIVISION	)

BETWEEN:	MOSES ARULTHEVASUTHAN ARULIAH Applicant
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	MARSHALL J
DATE:	1 OCTOBER 1997
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

This matter is an application under Part 8 of the Migration Act 1958 (“the Act”) for a review of a decision of the Refugee Review Tribunal (“RRT”) that the applicant is not a refugee within the meaning of the 1951 Convention Relating to the Status of Refugees and 1967 Protocol Relating to the Status of Refugees in that he did not face a real chance of persecution in Sri Lanka.  Mr T V Hurley, of counsel, appeared for the applicant and Mr R Downing, of counsel, appeared for the respondent Minister for Immigration and Multicultural Affairs (“the Minister”).

BACKGROUND

The applicant is a twenty-three year old Christian Tamil from Sri Lanka.  He arrived in Australia on 5 February 1996 on a student visa.  He applied to the Department of Immigration and Multicultural Affairs on 17 April 1996 for a protection visa.  The Minister’s delegate refused his application on 14 August 1996.  On 6 September 1996 the applicant applied to the RRT for a review of the delegate’s decision.  The RRT affirmed the decision of the delegate not to grant the applicant a protection visa.  It published its decision and reasons for decision on 7 January 1997 after conducting a hearing on 16 December 1996.

The applicant is a single man with no dependants.  He was born in Vavuniya in northern Sri Lanka on 11 June 1974.  He came to Colombo to live with his family but in 1983 his family’s house was burned down in anti-Tamil riots.  The family fled to Jaffna in northern Sri Lanka.  Whilst in Jaffna the applicant’s elder brother joined a militant group known as the Tamil Eelam Liberation Organisation (“TELO”).  As a result, security forces detained the applicant’s father for several months in an army camp.  In 1985-1986, during a conflict between Tamil groups, the applicant’s brother was detained by the Liberation Tigers of Tamil Eelam (“LTTE”) but managed to escape overseas and currently resides in Denmark.  In 1987, security forces detained another brother of the applicant.  He was tortured in detention but after his release he escaped overseas and now resides in the United Kingdom.  The applicant’s father had an involvement with the LTTE but fell out with them.  This resulted in the family fleeing to Vavuniya from Jaffna.  Prior to the family’s move to Vavuniya, the applicant was taken away by the LTTE for three weeks training.  In Vavuniya the applicant alleged that he was detained by the security forces for being a LTTE supporter.  He claimed that the detention was for over three months and occurred because he refused to join TELO, so TELO informed security that his family supported the LTTE.  At the end of 1991 the applicant went to Colombo to continue his education in what was perceived to be a safer environment.  The applicant claimed that in 1993 he was tortured by police in Colombo and accused of being a LTTE supporter.  He alleged that he was held for three months before being released upon the intervention of a priest.  He further claimed that he was detained by police in October 1995 and tortured.  He said that he was released on 24 November 1995, whereupon his father began to make arrangements for him to leave Sri Lanka.  He applied through an agent for a student visa to enable him to come to Australia.  The agent arranged for false documentation to the effect that he was in employment in Colombo and had been studying there.  He alleged that after the LTTE bomb attack on the Central Bank in Colombo on 31 January 1996, the police looked for him at home.  He remained in hiding from then until his departure on 24 February 1996.

REASONING OF THE REFUGEE REVIEW TRIBUNAL

The RRT formed an adverse view of the applicant’s credibility.  The first issue it raised on the subject of the applicant’s credibility was that:

“The detention of brother Joseph [the elder brother] by the LTTE was mentioned at the Tribunal hearing, but had not been referred to at any time previously.”

Mr Hurley contended that:

“... whether or not his brother is detained is peripherable to the main claim that the applicant is making, that because he is a Tamil and because his family is involved in Tamil activities he has a well-founded fear of persecution.”

Mr Hurley conceded that the point made by the RRT on this issue and two other similar points were unlikely to be the subject of valid complaint by the applicant given views recently expressed in the High Court concerning the exercise of judicial restraint in the examination of the reasoning process of the RRT: see, generally, Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. The first of those additional points was that the applicant had not referred to his alleged detention by the LTTE until he wrote to the RRT alleging the same by letter dated 5 September 1996. The second additional point concerned the identity of a priest who allegedly intervened on the applicant’s behalf. However, Mr Hurley had a different view on the effect of two further findings which the RRT made. It is to these issues that I now turn.

The RRT doubted the applicant’s claims that he was badly beaten and tortured in 1993 and released only after the intervention of a priest.  The RRT said:

“The applicant showed the Tribunal certain scars on his lip, chin, leg and shoulder which seem to indicate physical abuse of some kind.  He also said, however, that he suffered internal injuries in the October/November 1995 detention which have left him with ongoing back and muscle pain.  This is not borne out by his medical examination of 14 February 1996, in which the doctor found no abnormalities or disabilities at all, and in which the applicant expressly said that he did not suffer pain in the neck, back or any joint, and, indeed, that he was not suffering from any medical condition or disability.”

Mr Hurley contended that what is set out in the passage above and quoted from the decision of the RRT is “literally correct” but misleading.  Mr Hurley submitted that:

“... the Tribunal, we submit, is unreasonable and unrealistic to expect that a person who is being examined in February 1996 as part of what he says to the Tribunal although it must be said the Tribunal does not accept, but what he says to the Tribunal is part of a process of removing him from Sri Lanka where he had been detained until 24 November 1995.  So when he is being examined by a doctor in 1996 in support of a visa to leave Sri Lanka to a place of peace it is unrealistic of the Tribunal to expect him, the applicant, to, as it were, jeopardise, we would submit, his ability to leave the country by highlighting to one of own nationals and who is not - well, he is an independent doctor.

... To the extent that the Tribunal relies upon his failure to do so as criticising or undermining the applicant’s credibility it, we submit, has not had regard to the matter of the substance of the claims made by the applicant and therefore have not acted according to the substantial justice and the merits of the applicant’s case.”

The RRT dealt with the applicant’s account of his father’s arrangements for him to come to Australia.  It said:

“... the applicant’s account of making use of an agent to come to Australia cannot be true, and his account of detention in October/November 1995 is almost certainly untrue also.  The applicant’s original account, in which he said that his father started making arrangements for him to come to Australia after his release on 24 November 1995, was essentially confirmed at the Tribunal hearing, where he said that these arrangements were set in train in December 1995.  This is, however, clearly inconsistent with his appeal letter to the Tribunal, which refers to the arrangements being begun in February 1996.  The applicant attempted to explain the inconsistency by saying that at first the arrangement was just to get him out of the country, but it was only during February that it was decided to send him to Australia.  This, however, is inconsistent with a number of documents on file dating from December which show that he had by then applied to come to Australia.  These documents include the application form signed by the applicant himself on 14 December 1995.  He said that he merely signed this without knowing what it was; but I am unable to believe this, especially as he can speak, read and write English.  Another document on file was given to him by hand by the Australian High Commission on 8 January 1996.  I am satisfied that the applicant knew very well that he was applying to come to Australia in December 1995.”

Mr Hurley submitted that it was not open to the RRT to adversely judge the applicant’s credibility because of that issue.  He submitted that:

“... According to what the applicant said, if he was released from custody in Sri Lanka on 24 November 1995 the application would have had to have moved expeditiously.  But for the Tribunal to conclude without more that it was impossible, we submit, is a step into the unknown that the Tribunal cannot make without some evidence or some basis for it.

We submit that in the days, as this document itself shows, it is a facsimile from Box Hill to Sri Lanka, and that in the modern day and age of electronic communication, the conclusion that the Tribunal draws and as the Tribunal accepts it is a facsimile, the fact that he had been accepted by Box Hill College on 6 December, in our submission, is then totally neutral to the conclusion as to whether or not he was released from custody on 24 November, if it was dated.  Even if it was dated before his release, it is not impossible that his father had procured it before he was released, but it is neutral, and it is not the basis, in our submission, it is not an objective fact which contradicts in any way the claims made by the applicant, which is what the Tribunal relies upon at 4.”

In response on this issue, Mr Downing referred the Court to some passages in the transcript before the RRT which supported the RRT’s views that the applicant was not credible on this issue and, in particular, a passage at page 12 of the transcript before the RRT (reproduced at 212 of the court book) where the applicant, in the face of a question which disclosed that the RRT had in its possession a document signed by the applicant on 14 December 1995 to come to Australia, still answered to the effect that he only knew in late January 1996 that he was coming to Australia.

THE COMPETING CONTENTIONS

Mr Hurley submitted that by wrongly making findings adverse to the applicant’s credibility, the RRT had failed to accord substantial justice in accordance with s 420 of the Act and had, therefore, committed an error of law.

Section 420 of the Act provides as follows:

“(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.”

Mr Downing submitted that the applicant’s real complaint was not about the RRT’s finding of relevant objective facts but “the inference that is drawn from those facts”.  He said that the applicant’s case was effectively about merits review.

CONCLUSION

Recently the majority of the Full Court in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621 held that breach of s 420 of the Act may give rise to a ground of review under s 476(1) of the Act: see Davies J at 624-625 and Burchett J at 636 and 639-640, Whitlam J dissenting (at 681). In my reasons in Umberlebee v Minister for Immigration and Multicultural Affairs (28 August 1997, unreported) at 5, I was prepared to assume for the purposes of that matter that a breach of s 420 of the Act permits a decision of the RRT to be set aside, whether or not the observations of the majority in Eshetu were obiter dicta.  In Khan v Minister for Immigration and Multicultural Affairs (4 August 1997, unreported) Lockhart J at 7 stated that the issue of the status of the observations did not arise because he entirely agreed with Davies J and Burchett J on the relationship between s 420 and s 476(1) of the Act. In Umberlebee it was, strictly speaking, not necessary for me to express my view on the views of the majority in Eshetu as the s 420 argument in Umberlebee was not the main issue in the case. However, s 420 is central to the application for review in the case at hand and it is therefore appropriate that I state my opinion, which is that I agree with the comments made by Lockhart J in Khan as to the relevant observations by the majority in Eshetu.  I also note that Mansfield J has regarded the Full Court majority in Eshetu as having laid down authoritatively the proper operation of, and interaction between, ss 470 and 476 of the Act: see Singh v Minister for Immigration and Multicultural Affairs (19 August 1997, unreported) at 11.

In my view, however, the RRT in this case applied itself to the task it was required to undertake, that is, whether the applicant had a well-founded fear of persecution in Sri Lanka, in a thorough and fair manner.  It was not bound by the assertions of the applicant on questions of fact.  The similarity between this matter and Jovicic v Minister for Immigration and Ethnic Affairs (Goldberg J, 18 March 1997, unreported) does not end at the coincidence of counsels’ appearances.  Many of the following observations of Goldberg J in Jovicic have equal force in the current matter, including the following one at 17-18:

“In reality the applicant’s case in this respect is not so much that there was no basis upon which the Tribunal could draw the inferences it did, but rather that it drew the wrong inferences from the primary facts as found by the Tribunal when it should have drawn other inferences.  The statement that the applicant was prepared to use dishonest means to travel to and stay in Australia was made in the context of assessing the applicant’s credibility.  It occurred in the context of a number of findings of fact (all supported by, and open upon the evidence) which the Tribunal found did not preclude the applicant from being a refugee but counted ‘heavily against his credibility’.  As Mr Downing submitted, that reference by the Tribunal was not a basis for the determination of the matter but was rather one matter taken into account in determining the credit worthiness of the applicant.  A similar observation can be made in respect of the second passage upon which Mr Hurley relies which, again, was regarded as a further reason for doubting the applicant’s credibility in general.”

As Goldberg J did in Jovicic, I find here that the inferences drawn by the RRT which were subject to challenge by the applicant were inferences which were open to it to draw.  See also Vinh v Minister for Immigration and Ethnic Affairs (Goldberg J, 6 May 1997, unreported) where his Honour said at 8-9:

“The Tribunal’s ultimate finding of fact that there was no real chance that the applicant would be subjected to persecution for a Convention reason was based on an adverse finding as to the applicant’s credibility.  There are numerous authorities which make it clear that a court should not disturb a finding of fact of a Tribunal based on its assessment of the credit or credibility of a witness unless it is satisfied that the Tribunal did not take advantage of its opportunity to see and hear the witness or that the conclusions it reached were inconsistent with an overwhelming body of evidence or were glaringly improbable:  Abalos v Australian Postal Commission (1990) 171 CLR 167, 178-9; Devries v Australian National Railways Commission (1993) 177 CLR 472, 479; Warren v Coombes (1979) 142 CLR 531, 537, 552-553. Nevertheless the Tribunal is still required to apply the ‘real chance’ test and engage in speculation as to whether there is a real chance of persecution: Guo Wei Rong (supra) at 172-175, 191-193.”

Goldberg J’s judgment in Vinh is the subject of an appeal, but the grounds of appeal in that matter do not deal with the matters raised in the above quotation.

One of the two findings which were the subject of fundamental challenge by Mr Hurley was admitted by him to be literally correct. The other finding was open to the RRT, in my view, on a plain reading of the relevant transcript, mention of which was made earlier in these reasons. It follows that no breach of s 420 of the Act occurred in the RRT making its decision of 7 January 1997. In my view, the RRT acted in accordance with substantial justice and the merits of the matter.

ORDER

It follows that the application must be dismissed with costs, including reserved costs, if any.

I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall

Associate:

Dated:            1 October 1997

Counsel for the Applicant:	T V Hurley
Solicitor for the Applicant:	Waran & Associates
Counsel for the Respondent:	R Downing
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	14 August 1997
Date of Judgment:	1 October 1997