Bocks v Minister for Immigration and Multicultural Affairs

[1999] FCA 732

FEDERAL COURT OF AUSTRALIA

Bocks v Minister for Immigration & Multicultural Affairs[1999] FCA 732

MIGRATION – Migration Act 1958 (Cth) (“the Act”) – review of decision of the Refugee Review Tribunal (“the Tribunal”) – whether Tribunal failed to comply with obligations under s 430(1) of the Act – whether there was no evidence before the Tribunal to justify its findings

Migration Act 1958 (Cth), ss 36(2), 420, 430(1), 476(1)(a), 476(1)(g), 476(4)

Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21, applied
Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212, applied
Chen v Minister for Immigration and Multicultural Affairs [1998] FCA 287 and on appeal [1999] FCA 34, applied

BOCKS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 777 of 1998

BRANSON J
SYDNEY
2 JUNE 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 777 of 1998

BETWEEN:	GAVIN ADRIAN BOCKS Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	BRANSON J
DATE OF ORDER:	2 JUNE 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The application be dismissed.

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	NG 777 of 1998

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

JUDGE:	BRANSON J
DATE:	2 JUNE 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1. This is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed a decision of the Department of Immigration and Multicultural Affairs (“the Department”) to refuse to grant the applicant a protection visa. The criteria for the grant of a protection visa are set out in s 36(2) of the Migration Act 1958 (Cth) (“the Act”). Before a protection visa may be granted, the relevant decision-maker must be satisfied that the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees made on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees made in New York on 31 January 1967 (together known as “the Convention”).

2. Article 1A(2) of the Convention defines a refugee as a 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 unable or, owing to such fear, is unwilling to avail himself of the protection of that country ...”

   Background

3. The applicant is a citizen of Sri Lanka aged 31 years of Burgher ethnicity who arrived in Australia on 12 March 1997.  The applicant made an application to the Department for a protection visa on 27 March 1997.  On 3 April 1997 that application was refused.  The applicant then applied for a review of that decision before the Tribunal.  On 3 June 1998 the applicant attended an oral hearing before the Tribunal.  On 2 July 1998 the Tribunal affirmed the decision of the Department to refuse the grant of a protection visa.  On 30 July 1998 the applicant lodged an application in this Court for judicial review of the decision of the Tribunal.

   Consideration

4. The principal ground of appeal advanced by the applicant was that the Tribunal failed to act justly or fairly or according to substantial justice and the merits of the case when it rejected his evidence that he was treated like a Tamil in Sri Lanka as he was a Tamil Burgher (ss 420 and 476(1)(a) of the Act). The applicant contends that the Tribunal erred in failing to seek information about the position in Sri Lanka of people with the background claimed by the applicant.

5. Since this matter was  heard by me, the High Court has delivered its reasons in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21. In Eshetu the High Court held that s 420 of the Act does not establish procedures required by the Act to be observed in connection with the making of a decision within the meaning of s 476(1)(a) of the Act. The parties were given an opportunity to place written submissions before the Court as to the significance of the Eshetu decision. By his written submissions the applicant has acknowledged that this ground of review is no longer available to him.

6. The applicant also contended that the Tribunal failed to comply with its obligations under s 430(1) of the Act in that it did not give reasons for finding that there was no such thing as a Tamil Burgher.

7. Section 430(1) of the Act provides as follows:

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

   (a)sets out the decision of the Tribunal on the review; and

   (b)sets out the reasons for the decision; and

   (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.”

8. In a written statement dated 30 April 1997 the applicant said:

   “I am a Sri Lankan Tamil Burgher and belong to the Tamil minority community …

   My grand parent is a Tamil and we were considered as “Tamil Burghers”.  On the other hand the Burghers who were married to Tamils faced political discrimination, humiliation, torture and death.  Unfortunately, the Burghers do not look different from another Sri Lankan national due to the integration into the society through marriages.  It would be appropriate to state here that a Sri Lankan Burgher who has brown skin instead of a white coloured skin and closely related to Tamils face severe harassment, humiliation, torture and death at any moment from the government security officers.  …  The Sri Lankan security officers easily traced the Tamil Burghers and ill-treated them in suspicion of LTTE [Liberation Tigers of Tamil Eelam] involvement.”

9. In his evidence before the Tribunal the applicant said that the reason why he feared returning to Sri Lanka was “mainly because of my family ties with the Tamil and my cousins are involved with the LTT that I got involved into this state of affairs”.  He went on to say:

   “My grandparent is Tamil and I’ve got uncles and aunties still living who are Tamil in Batticaloa and (indistinct) who are married to Tamils.  …  My mum’s mum, my grandmother is a Tamil, she was born in (indistinct) in Batticaloa”.

   The Tribunal put to the applicant:

   “But I have been told by the Department of Foreign Affairs and Trade that there is no such thing as a Tamil Burghar, a person is either Tamil or they are classed as a Burghar so what is it that would make anyone think that you are related to Tamils in any way considering you come from Colombo and are a Burghar?”

   The applicant responded:

   “It’s because of my mum was brought up in Batticaloa and my mum’s sisters were married to Tamils and my dad’s dad’s daughter who is married to a Tamil and lives in Batticaloa too.  My dad has relations and my cousins (indistinct) Tamils.”

10. The Tribunal dealt with the evidence of the applicant that he had family members who were Tamils and was seen by the authorities in Sri Lanka as being closely related to Tamils in the following passages in its reasons for decision:

    “The applicant claimed that as a Tamil Burgher he faced discrimination and persecution at the hands of the Sri Lankan authorities.  He also claimed his family had been targeted as being sympathetic with the Tamil separatist movement because of his father’s long term involvement with the TULF [Tamil United Liberation Front].

    …

    There are several reasons why the Tribunal does not accept the claims as made by the applicant.  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 … and is well educated, speaking English fluently.  He was also 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.”

11. The significance which the applicant ascribed to his ethnicity, namely being a Tamil Burgher, was that were he to return to Sri Lanka he would be treated in the same way that Tamils are treated in Sri Lanka.  The Tribunal was not satisfied that the applicant would be treated in Sri Lanka as though he were a Tamil.  It noted that his personal documentation shows that he is a Burgher not a Tamil, that his name, level of education and language skills suggest against his being a Tamil and that his place of birth and residence was Colombo (ie as opposed to a “Tamil” area).  That is, the Tribunal was satisfied that the applicant would not present to a person in authority in Sri Lanka as though he were a Tamil, and that he was in possession of documents which show that he is not a Tamil.

12. 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.

13. A further contention advanced by the applicant is that the Tribunal erred by failing to address in its reasons for decision the applicant’s evidence that he only returned to Sri Lanka when his father told him that it was safe to do so.  This contention relates to the applicant’s claim that he is at risk of persecution if he returns to Sri Lanka, not merely because of his claimed ethnicity, but because he was suspected of supporting Tamil Eelam, in part at least because he has cousins with whom he associated in Sri Lanka who are members of the LTTE.

14. As to the applicant’s claim that he would be suspected of being a supporter of Tamil Eelam if he returns to Sri Lanka, the Tribunal said:

    “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 evidence, the activities of the LTTE are severely restricted in the capital, and appears to be limited to sporadic attacks on high profit 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 [the United Arab Emirates].  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 [t]he 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 m[a]y have held about returning to Sri Lanka but for other reasons.

15. In the above passage the Tribunal does not make reference to the applicant’s evidence, in his written statement, that he returned to Sri Lanka in 1993 from the United Arab Emirates after his father advised him “that the police officers had changed places and that [he] could easily come back for a holiday”, and that he returned again in 1995 or 1996 after his father advised him of a proposed peace settlement and “that [he] should come back to Sri Lanka and live [there] permanently”.  The transcript of the hearing before the Tribunal was placed in evidence.  The applicant did not repeat during his oral evidence before the Tribunal his written evidence concerning his father’s advice to return to Sri Lanka.  When asked by the Tribunal why he returned to Sri Lanka in 1993 the applicant said that it was because his girlfriend’s parents were pressuring him to get engaged.

16. I do not consider that the Tribunal failed in the circumstances to comply with its obligation under s 430 of the Act to set out the reasons for its decision, its findings on any material questions of fact and to make reference to the evidence or other material on which the findings of fact were based. The Tribunal took the view that if the applicant had been targeted and warned by the authorities in the way that he suggested in his evidence, he would not have risked returning to Sri Lanka on the number of occasions that he did. The logic behind this view is not undermined by the applicant’s assertions in his written statement that his father advised him on three separate occasions to return to Sri Lanka. Indeed, it seems likely that the Tribunal implicitly took the view that the applicant’s statement concerning his father’s advice was also inconsistent with his evidence concerning his treatment by the authorities. In any event, in my view, the question of whether the applicant’s father advised him to return to Sri Lanka was not a material question of fact within the meaning of s 430 of the Act. The relevant material question of fact was whether the applicant had been treated by the authorities in Sri Lanka in the way that he claimed.

17. Finally, the applicant contends that there was no evidence before the Tribunal to justify its findings:

    (a)that the applicant’s brother was abducted from Colombo; and

    (b)that prior to the applicant’s last trip to Sri Lanka in 1996, the applicant’s evidence was that he had been warned on many occasions to leave Sri Lanka for good.

18. The “no evidence” ground of review is specified by s 476(1)(g) of the Act. The ambit of the ground of review is restricted by s 476(4) of the Act which provides as follows:

    “The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

    (a)the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or

    (b)the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.”

19. The circumstance envisaged by s 476(4)(a) does not arise in this case. That is, the Tribunal was not required by law to reach the decision which it did only if one or other or both of those matters of fact was established.

20. Nor am I satisfied that the circumstances envisaged by s 476(4)(b) arise.  The Tribunal did not find as a fact that the applicant’s brother was abducted from Colombo.  As I read the Tribunal’s reasons for decision, the Tribunal was not satisfied that the applicant’s brother was kidnapped.  It is true that the applicant gave evidence that his brother was kidnapped from Batticaloa and that in rehearsing his evidence in its reasons the Tribunal recorded his evidence as being that his brother was abducted from Colombo.  However, the Tribunal did not base its decision on the fact of the applicant’s brother having been kidnapped from any particular place.  The applicant might on his evidence reasonably be expected to live in Colombo should he return to Sri Lanka.  The Tribunal was concerned to form an opinion as to the likelihood of the applicant attracting suspicion in the eyes of the authorities in Colombo.  It was in this context that it referred to the applicant’s evidence concerning his brother having been kidnapped.  The Tribunal’s error as to the place from which the applicant claimed that his brother had been kidnapped did not form a basis for the Tribunal’s decision.  The Tribunal’s error simply made this aspect of the applicant’s evidence of limited, if any, relevance to the issue in respect of which the Tribunal considered it.

21. The applicant’s evidence was that, at a time which I understand to be about 1989, he was arrested in company with his cousin by CID officers and brutally assaulted.  He said he was eventually released following the intervention of his father and released on condition that he leave the country for good.  He further gave evidence that he returned to Sri Lanka in 1993 but because of a political assassination had to flee to save his life.  He claimed that in 1995 he again returned to Sri Lanka but was arrested when he went with his father to register at the police station.  The applicant gave evidence that on this occasion he was kept for three days, interrogated and assaulted and released only when his father paid a bribe.  He returned to the United Arab Emirates.  The applicant claims that he then returned to Sri Lanka in 1996 and was immediately arrested at the airport, accused of assisting the LTTE in foreign countries, beaten and subjected to “barbarous treatment”.

22. The applicant did not claim to have been explicitly warned on many occasions to leave Sri Lanka for good.  However, he did give evidence of repeatedly being compelled to leave Sri Lanka to escape the authorities following his arrest and violent assault.  The Tribunal’s identification of the above “fact” was in the context of the Tribunal’s consideration of whether the applicant’s evidence of repeatedly leaving and returning to Sri Lanka disclosed a well-founded fear of persecution.  In my view, it is unrealistic, having regard to the Tribunal’s reasons as a whole, to conclude that the Tribunal treated the “fact” of the applicant having claimed to have been warned “on many occasions” to leave Sri Lanka as a critical link in its chain of reasoning leading to its ultimate decision (Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 220-221 per Black CJ; see also Chen v Minister for Immigration and Multicultural Affairs [1998] FCA 287 and on appeal [1999] FCA 34).

1. This is a case in which the Tribunal formed an adverse view of the applicant’s credibility.  Not being satisfied as to the truth of his evidence concerning his past treatment in Sri Lanka, the Tribunal formed the view that there is no real chance that he will be persecuted for any Convention reason if he returns to Sri Lanka.  I am not satisfied that any relevant error was made by the Tribunal in forming this view.

2. The decision of the Tribunal will be affirmed.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:             2 June 1999

Counsel for the Applicant:	Mr C. Colborne
Solicitor for the Applicant:	Somers & Sivalogan
Counsel for the Respondent:	Ms F. Backman
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	29 April 1999; written submissions 25 May 1999
Date of Judgment:	2 June 1999