Bocks v Minister for Immigration and Multicultural Affairs

[1999] FCA 1671

FEDERAL COURT OF AUSTRALIA

Bocks v Minister for Immigration & Multicultural Affairs [1999] FCA 1671

GAVIN ADRIAN BOCKS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N613 of 1999

WILCOX, EINFELD and TAMBERLIN JJ
SYDNEY
19 NOVEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N613 of 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	GAVIN ADRIAN BOCKS Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	WILCOX, EINFELD and TAMBERLIN JJ
DATE OF ORDER:	19 NOVEMBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant, Gavin Adrian Bocks, pay the costs of the respondent, Minister for Immigration and Multicultural Affairs.

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	N613 of 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	GAVIN ADRIAN BOCKS Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	WILCOX, EINFELD and TAMBERLIN JJ
DATE:	19 NOVEMBER 1999
PLACE:	SYDNEY

EXTEMPORE REASONS FOR JUDGMENT

1. THE COURT:  This an appeal by Gavin Adrian Bocks against a decision of a judge of the Court, Branson J, dismissing an application to review a decision of the Refugee Review Tribunal.  The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Ethnic Affairs, the respondent to the appeal, to refuse Mr Bocks a protection visa.  The Tribunal was not satisfied that Mr Bocks was a refugee within the meaning of the Refugee Convention. 

2. Several issues were debated before Branson J and raised in the notice of appeal to the Full Court. However, only one ground of appeal was ultimately pressed: that the Tribunal failed to observe procedures required by s430 of the Migration Act 1958 by failing to give its reasons for finding that there was no such thing as a Tamil Burgher.

3. Section 430(1)(c) and (d) requires that:

   “(1)Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

   (a)…

   (b)…

   (c)sets out the findings on any material questions of fact; and

   (d)refers to the evidence or any other material on which the findings of fact were based.”

   A failure to comply with those requirements renders a decision judicially reviewable (see s476(1)(a) of the Act).

4. In order to understand the appellant's ground of appeal, it is necessary to note that he claimed before the Tribunal that he was one of the small group of people known in Sri Lanka, his native country, as “Burghers”.  It seems Burghers are the descendants of the Portuguese and Dutch colonisers of Sri Lanka, usually Christian and light skinned.  Mr Bocks claimed that one of his grandparents was a Tamil and he had Tamil cousins.  So he described himself as a “Tamil Burgher”.  His claim, in essence, was that, because of his Tamil connections and the conflict between the Tamil separatists and the Sri Lankan government, he faced persecution in Sri Lanka on the ground of imputed political opinion.  He also mentioned his father's involvement in Tamil United Liberation Front (“TULF”), a Tamil political party which, however, is a supporter of the Sri Lankan government and opposed to the separatists, the Liberation Tigers of Tamil Elam, (“LTTE”).

5. The Tribunal did not accept that the appellant faced persecution.  It gave reasons as follows:

   “Firstly, the applicant's birth certificate states that his parents and grandparents were classed as ‘Burghers’.  Given the information cited above, even if one of his grandparents had in fact been a Tamil, this does not appear to have altered the applicant’s perceived ethnicity in any way.  His own documentation (birth certificate) states that he is a Burgher.  He has an English/European name (as evidenced on his passport, NIC and birth certificate), and is well educated, speaking English fluently.  He was born in Colombo and has lived there most of his life, except for the periods when he was working overseas.  He is registered as being resident and born in Colombo.  These facts in themselves suggest that the applicant is a Burgher and is accepted as such.  Indeed given these facts, even if the applicant were to be detained by the authorities in a security sweep, it would be easy for him to prove his identity and ethnicity.  The Tribunal is not satisfied that given these circumstances the applicant would be perceived as a security risk by the Sri Lankan authorities.

   The Tribunal does not accept the applicant’s claims that he is a ‘Tamil Burgher’ (there being no such thing) nor that the Burghers are perceived by the authorities as being connected with the LTTE – as the above cited evidence indicates.  It would appear that the Burghers have remained aloof from the ethnic struggle in Sri Lanka waged between the Sinhalese and the Tamils – many of them having already left Sri Lanka in the 1950s when English was discontinued as the official language – not as the applicant suggested because of disenchantment with the Sinhalese Government or the LTTE.  The above information also makes it clear that the Burghers would not grant assistance to the LTTE or anyone else involved in violent political struggles in Sri Lanka.

   Even if the applicant does have ‘Tamil’ cousins as he alleges, the Tribunal  is not satisfied that this fact alone would cast suspicion on him in the eyes of the authorities as being connected with the LTTE.  In light of the information cited above concerning the activities of the LTTE in Colombo, the Tribunal  is not satisfied that the applicant’s brother or himself were held by members of the LTTE (in that his brother was kidnapped to Jaffna where he was held until a ransom was paid) or that the applicant himself was taken to a house in Colombo for brainwashing by LTTE operatives at the instigation of his cousin.  As the above information shows, the activities of the LTTE are severely restricted in the capital, and appears to be limited to sporadic attacks on high profile targets – such as bombings and assassinations of high profile politicians.

   Indeed, there are several reasons to doubt the claims made by the applicant that he was arrested and detained for the periods he claims and for the reasons he states.  The applicant has been issued two passports quite readily by the Sri Lankan authorities and he has been permitted to leave and reenter the country on several occasions without incident.  The fact is that his registration and details mentioned above indicate Colombo as his place of birth and his residence, that he is of Burgher ethnicity, and that he had been continuously employed while he was in the U.A.E.  These facts indicate that he would be of little concern to the Sri Lankan authorities as a security risk or that he would be perceived in any way to be connected with the LTTE.  Given the fact he is a Burgher, they would have no reason to suspect the applicant of being involved with the LTTE in any way.

   Also the Tribunal  does not accept that the applicant, if he had been targeted and warned by the authorities on so many previous occasions to leave Sri Lanka for good, that he would have risked returning there on so many occasions as he in fact did.  The Tribunal notes that he [sic: the] applicant obtained his visitor visa for Australia while in Dubai and that when his work contract there expired he returned to Sri Lanka.  In the Tribunal’s view this does not disclose a well founded fear on the applicant’s part of impending persecution in Sri Lanka.  These facts would seem to indicate that the applicant intended to come to Australia after his work contract expired, not because of any threat of harm he my [sic: may] have held about returning to Sri Lanka but for other reasons.

   Also, the Tribunal does not accept that even if his father had connections with the TULF party that the applicant would have attracted the adverse attention of the authorities for this reason.  The information cited above states that TULF is a moderate Tamil party which supports the present Government and has been largely supportive of the Governments of Sri Lanka in the past.  This would make it remote, in the Tribunal‘s view, that the applicant or any member of the TULF would have anything to fear from the Sri Lankan authorities, as opposed to the LTTE which is known to be antagonistic towards the TULF.

   Given these considerations and findings the Tribunal is not satisfied that the applicant experienced instances of Convention related persecution prior to his final departure from Sri Lanka as he maintains.

   As the applicant is a Burgher, Christian and speaks English, the information cited above is that the authorities would be willing and able to offer protection to the applicant against any fear of harm he may have stemming from either his imputed political beliefs or from his ethnicity.  As noted above the Burghers are considered to have remained aloof from the political discord in Sri Lanka and are not perceived to be aligned with any one political organisation or group.  They receive the protection of the authorities and, given the applicant’s circumstances as related above, the Tribunal  does not consider it unreasonable to expect him to avail himself of this protection.

   In light of the above claims, information and considerations, the Tribunal  is not satisfied that the applicant has a well founded fear of Convention related persecution should he return to Sri Lanka either at the present time or in the reasonably foreseeable future.”

6. It will be noted that, in the second paragraph of this long quotation, the Tribunal commented in parenthesis that “there is no such thing as a Tamil Burgher”.  It is this comment that has given rise to the only ground of appeal pressed before us. 

7. It might reasonably be thought that the comment was an inconsequential view about a name.  This was the view of Branson J.  Her Honour said:

   “It seems to me that the question of whether there is any group in Sri Lanka ordinarily classified as Tamil Burghers is of little, if any, significance in the context of this case.  I read the Tribunal's assertion that there is ‘no such thing’ as little more than a ‘throw-away line’.  As is mentioned above, the significance that the applicant attaches to his claimed ethnicity as a Tamil Burgher is that he would be treated like a Tamil if he returned to Sri Lanka.  The Tribunal was not satisfied that he would be so treated for the reasons personal to him mentioned above.  In view of the approach taken by the Tribunal, its view that there is no such thing as a Tamil Burgher did not assume any real significance.  I am not satisfied that the question of whether there is any such group as Tamil Burghers was a ‘material question of fact’ within the meaning of s 430(1) of the Act.”

8. We agree.  That this case does not depend upon a name is indicated by the appellant's own evidence to the Tribunal.  The Tribunal member invited Mr Bocks to tell him, in his own words:

   “Why it is that you fear you cannot return to Sri Lanka at the present time?”

   Mr Bocks replied:

   “It is mainly because of my family ties with the Tamil and my cousins are involved with the LTT [sic: LTTE] that I got into this state of affairs.”

   The Tribunal member then asked Mr Bocks about his family connections and his cousins' activities.  They were evaluated in the findings and reasons for decision we have quoted. 

9. The submissions put to us by Mr Colborne on behalf of the appellant, re-visit those factual findings.  However, the scheme of the Migration Act is to make the Refugee Review Tribunal the arbiter of the facts.  Unless a finding is infected by a circumstance set out in s476 of the Act, it is not vulnerable to review in this Court.

10. The appellant failed at the Tribunal because the Tribunal member was not satisfied, as a matter of fact, that there was a real chance of him being persecuted in Sri Lanka on account of his perceived political opinion.  That was a finding open to the Tribunal.  It did not depend upon the question whether there was a group of people called Tamil Burghers.  It was based on the whole of the evidence, including the appellant's life in Colombo and his ability to leave and re-enter Sri Lanka without difficulty.  We do not think the Tribunal's throw-away comment about Tamil Burghers affected the outcome in any way.  The appeal must be dismissed. 

    [The respondent sought costs.]

11. The order of the Court will be that the appeal be dismissed and the appellant pay the respondent's costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Wilcox, Einfeld and Tamberlin .

Associate:

Dated:             19 November 1999

Counsel for the Appellant:	Mr Craig Colborne
Solicitor for the Appellant:	Somers & Sivalogan Solicitors
Counsel for the Respondent:	Mr Tim Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	19 November 1999