Caseem v Minister for Immigration and Multicultural Affairs

[2000] FCA 976

FEDERAL COURT OF AUSTRALIA

Caseem v Minister for Immigration & Multicultural Affairs [2000] FCA 976

MIGRATION – refugee – protection visa – review of a decision of the Refugee Review Tribunal – well‑founded fear of persecution – “real chance” test of being subjected to persecution – whether finding of implausibility of evidence is inconsistent with “real chance” test – effect of finding that applicant not credible witness – need to ask “What if I am wrong?”.

Migration Act 1958 (Cth): ss 430, 476(1)

Sellamuthu vMinister for Immigration & Multicultural Affairs (1999) 90 FCR 287 referred to
Re:  Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 referred to
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 referred to
Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719 referred to

AMEEN MOHAMED CASEEM v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
V 29 of 2000

GOLDBERG J
MELBOURNE
21 JULY 2000

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 29 of 2000

BETWEEN:	AMEEN MOHAMED CASEEM Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	GOLDBERG J
DATE OF ORDER:	21 JULY 2000
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The amended application is dismissed.

2.        The applicant pay the respondent’s costs including reserved 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 29 of 2000

BETWEEN:	AMEEN MOHAMED CASEEM Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	GOLDBERG J
DATE:	21 JULY 2000
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Sri Lanka who arrived in Australia on 31 December 1995.  On 30 June 1997 he lodged an application for a protection visa pursuant to the Migration Act 1958 (Cth) (“the Act”). A delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”) refused to grant the applicant a protection visa on 17 December 1997. An application for review to the Refugee Review Tribunal was filed on 19 January 1998 and a hearing before the Tribunal was held on 23 August 1999.

2. The applicant applies to the Court pursuant to Pt 8 of the Act to review the decision of the Tribunal made on 23 December 1999. The Tribunal found that the applicant is not a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951 as amended by the 1967 Protocol relating to the Status of Refugees (“the Convention”). The Tribunal affirmed the decision of the delegate of the Minister not to grant the applicant a protection visa.

   Background

3. The applicant is a single Muslim man born in 1973 in Trincomalee in the east of Sri Lanka.  He left school in 1988 and was unemployed until 1990 when he commenced work in his father’s sawmill business in Trincomalee.  He said, variously, that he worked there until 1994 when he moved to an unspecified address in Kolonnawa, Colombo and that he moved to Colombo in 1991.  He obtained his passport in mid June 1995, in the name of Ameen Alias Nasthakeem Mohamed Caseem, born in Polonanaruwa.  He obtained an Australian student visa and he left Sri Lanka legally in December 1995.

4. The applicant claimed that while a student in Sri Lanka he made friends with a Tamil by the name of Mohan and that in 1987 Mohan set up the Liberation Tigers of Tamil Eelam (“LTTE”) as a reliable source of timber for the applicant’s family’s sawmill business.  Occasionally, between 1988 and 1989, the applicant allowed Mohan to hide at the sawmill.  The applicant was suspected by Muslim neighbours of having LTTE connections himself because of his friendship with Mohan.  He claimed that a local armed Muslim vigilante group named Jihad had threatened him with death if he did not cease his association with the LTTE although nothing eventuated from these threats.  The applicant claimed that in 1993 he arranged a false passport for Mohan, and, when Mohan returned to Sri Lanka, the applicant found him accommodation in Colombo.

5. Inconsistently with his claim that he stayed at his father’s sawmill business in Trincomallee until 1994, the applicant claimed to have moved to Colombo in 1991, to avoid being killed by the security forces, and lived with a cousin at an unspecified address.  The applicant and his family are United National Party (“UNP”) supporters and the cousin was a UNP parliamentarian, which party is presently in opposition in Sri Lanka.  The applicant’s cousin lost his seat in the 1994 elections and moved to Polonnauwa.  The applicant stayed in Colombo because he claimed that Sri Lanka Muslim Congress (“SLMC”) supporters became more active in passing on information to the security forces about Muslims with LTTE links and he feared repercussions from the SLMC. 

6. On 25 October 1995 the LTTE blew up an oil refinery at Kolonnawa and the body of the applicant’s friend Mohan was found at the scene.  A few weeks after the bombing of the refinery some people, whom the applicant’s sister thought were from the LTTE, visited the applicant’s sister’s house looking for the applicant.  The applicant claimed he was in hiding at a former Minister’s house and remained in hiding until he left for Australia around Christmas 1995.  He claimed that the LTTE visited his sister some 10 or 15 times while he was in hiding. 

7. In November 1996 the LTTE delivered a letter for the applicant to his sister accusing him of working against the LTTE and providing information to the police.  The applicant claimed in his signed statement that this letter was passed on to him and, after receiving it, he decided to leave Sri Lanka because the LTTE and the security forces were after him.  There was also some delay in the applicant presenting this letter to the Australian authorities, even though it was mentioned in his 1997 application for a protection visa.  At the Tribunal hearing the applicant said that his signed statement was incorrect and that the letter was sent to him after he had come to Australia.

8. The applicant claimed to be very fearful of returning to Sri Lanka because he was wanted by the security forces and the LTTE.  He said he had never suffered serious harm but it was only a matter of time before either the LTTE or the security forces caught up with him.  He claimed to be at risk of violence from the SLMC for his connection with the LTTE and he also feared Jihad as a result of his implicated membership of the LTTE.

   Reasoning of the Tribunal

9. The Tribunal referred to the relevant principles and authorities it should apply in determining whether the applicant was a refugee for the purposes of the Convention.  The Tribunal set out and analysed in considerable detail the applicant’s claims, the evidence he placed before the Tribunal and other evidence available to it such as independent country information.  There were a number of inconsistencies in the applicant’s evidence which the Tribunal analysed.  The Tribunal found the applicant’s evidence to be “contradictory, implausible and inconsistent with independent country information” and was not satisfied the applicant was a credible witness.  The Tribunal pointed to several examples of inconsistency in the applicant’s evidence regarding where and with whom he stayed and when, when he decided to come to Australia and under what visa and the effect of the receipt of the letter from the LTTE.  These inconsistencies led the Tribunal to question the applicant’s identity and conclude that the applicant had used more than one name.  However, it concluded that his real name was Ameen Alias Nasthakeem Mohamed Caseem and that he was born in Trincomalee in 1973 as claimed in the protection visa application. 

10. The Tribunal did not accept that the applicant would suffer harm at the hands of the SLMC or the Jihad.  These conclusions were based on the lack of consistency demonstrated by the applicant in submissions regarding the threats from the SLMC and the Jihad and the independent country information regarding Muslims in Sri Lanka. 

11. Although the Tribunal accepted that the applicant may have been a friend, or at least a business associate, of Mohan it found it implausible that the applicant, a Muslim, continued to help Mohan after the late 1980s as he claimed.  The Tribunal also found it implausible that despite being threatened by the Jihad because of his LTTE links as early as November 1989, the applicant established close links with the political wing of the LTTE in 1990‑1991.  The Tribunal was not satisfied that the letter of 20 November 1996 purporting to be from the LTTE accusing the applicant of working with the authorities was genuine.  It explained in some detail why it had reached this conclusion.

12. The applicant also claimed to fear persecution from the security forces for his suspected involvement in the refinery bombing and his LTTE connections.  The Tribunal found that the applicant’s general assertions that the security forces were looking for him were implausible and inconsistent with independent country information.  In particular, the Tribunal referred to the fact that the security forces had inquired of his whereabouts from family members only once after the bombing, that he was able to obtain a passport in his own name and that he was accompanied to the airport by a senior member of the police.  Also, his residence for a short time with a member of parliament was inconsistent with his being wanted by the government. 

13. Overall the Tribunal explained in some detail and by reference to the evidence why it was not satisfied that the applicant had a well‑founded fear of harm within the meaning of the Convention from the Jihad, the SLMC or Muslim community, the LTTE or the security forces if he returned to Sri Lanka.

    Submissions

14. At the hearing the applicant relied on four grounds of review:

    ·The Tribunal did not correctly apply the “real chance” test as to whether the applicant had a well‑founded fear of persecution as set out by the High Court in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. The Tribunal’s use of the term “implausible” indicated that the Tribunal applied a test based on probability, rather than whether there was a real chance, as opposed to a remote possibility, of persecution.

    ·The Tribunal failed to ask the question – What if I am wrong? – in its rejection of crucial elements of the applicant’s claim such as its finding in relation to the applicant’s involvement with Mohan.  In support of this contention, the applicant relied on Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 and Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719.

    ·The Tribunal in breach of s 430(1)(c) and (d) of the Act failed to set out its findings on material questions of fact or to refer to the evidence upon which those findings were based. The applicant referred in particular to his imputed connection with the LTTE.

    ·The Tribunal had a statutory obligation to set out the basis on which it found the applicant’s claim implausible.

15. Two additional grounds based on s 476(1)(d) and s 476(1)(e) of the Act, were relied upon by the applicant in the amended application but were not referred to or elaborated in the applicant’s contentions or in oral submissions. The first ground was that the Tribunal’s decision was an improper exercise of power as the Tribunal applied a policy that reports from the Department of Foreign Affairs and Trade were to be accorded greater weight than the evidence of the applicant. The second ground was that the Tribunal failed to consider the applicant’s claims cumulatively, by dealing with the general situation of Muslims in Sri Lanka rather than the particular situation of the applicant, by confusing the identity of the applicant and others and by misconstruing the fact that the Applicant was carrying an identity card in another name.

16. The amended application included a ground that the decision involved an error of law involving an incorrect interpretation of the applicable law or an incorrect application of law to the facts.  The particulars given under this ground substantially related to the other grounds relied upon by the applicant and, to the extent to which they did not do so, they challenged some of the Tribunal’s findings of fact and sought, impermissibly, to raise the merits of those findings for review.

17. The Minister submitted that the Tribunal’s decision, read as a whole, contained a painstaking and thorough examination of each of the material issues and claims before it and that it was open to the Tribunal to make the findings which it did.  It was submitted that the Tribunal had applied the real chance test consistently with the reasoning in Chan v Minister for Immigration and Ethnic Affairs (supra) and that the Tribunal’s use of the term “implausible” did not demonstrate that it had applied a wrong test or standard or otherwise departed from the correct statement of principle which it set out at the commencement of its decision.

18. The Minister submitted that the use of the term “implausible” in relation to the applicant’s evidence on a number of material issues did not amount to a misapplication of the real chance test and that there was no basis for the proposition that there had been a failure to ask – what if I am wrong? 

19. The Minister acknowledged that in Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845 a Full Court of the Federal Court held that a failure to comply with the requirements of s 430(1) of the Act constituted a failure to observe procedures within the meaning of s 476(1)(a) of the Act which the Tribunal was required to observe in connection with the making of its decision. The Minister accepted that this Court is bound by that decision but made the formal submission that the correct position was that found in the joint judgment of Whitlam and Gyles JJ in Xu vMinister for Immigration & Multicultural Affairs [1999] FCA 1741. The Minister made the further submission that in any event the Tribunal had not contravened s 430(1)(c) or (d) in the manner in which it had reached its conclusions.

    Reasoning

20. The Tribunal’s use of the word “implausible” does not demonstrate that the Tribunal applied a test based on probability rather than considering whether there was a real chance that the applicant would be subjected to persecution if he returned to Sri Lanka.  The Tribunal subjected the claims and evidence put forward by the applicant to close examination and found them generally contradictory, implausible and inconsistent with independent country information.  The Tribunal was also not satisfied that the applicant was a credible witness.  The Tribunal set out in some detail the respects in which it found that the applicant’s evidence was not satisfactory.  It was with that background that the Tribunal found the applicant’s evidence and explanation about a number of material matters “implausible”.  By using that expression in this way, the Tribunal was saying no more than it did not accept the applicant’s evidence as credible on those particular matters.  Put shortly, the Tribunal did not believe the applicant’s story.  Upon this basis the Tribunal was entitled to reject the applicant’s claim for refugee status.  As Wilcox and Madgwick JJ said in Sellamuthu vMinister for Immigration & Multicultural Affairs (1999) 90 FCR 287 at 294:

    “In many … cases the sole substantial basis for judging whether a person falls within the Convention criteria for a ‘refugee’ will be the information as to his/her supposed history and background furnished by an applicant.  Upon legally proper rejection of the credibility of an applicant in such a case, there will be no basis for requiring that the RRT do more than forthwith reject the claim for refugee status.”

    In a number of respects the Tribunal made findings which were adverse to the credit of the applicant, thereby resulting in a rejection of his evidence and claims.

21. The Tribunal’s approach was not inconsistent in any way with the need to ask, consistently with the reasoning in Chan v Minister for Immigration and Ethnic Affairs (supra), whether there was a real chance that the applicant might be subjected to persecution if he returned to Sri Lanka.  The Tribunal did not use the terminology of “implausible” as an alternative or substitute for asking whether the applicant faced a real chance of persecution if he returned to Sri Lanka.  Rather, the Tribunal was evaluating the plausibility of the evidence and the credibility of the applicant as a first step along the way to asking that question.

22. In this respect the observation of McHugh J in Re:  Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 is apposite:

    “In addition, the prosecutor alleges that the tribunal breached s 430(1) by failing to set out reasons for its finding that the prosecutor’s claim that members of PLOTE tried to recruit him were ‘utterly implausible’.  However, this was essentially a finding as to whether the prosecutor should be believed in his claim – a finding on credibility which is the function of the primary decision‑maker par excellence.  If the primary decision‑maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed.  The tribunal must give the reasons for its decision, not the sub‑set of reasons why it accepted or rejected individual pieces of evidence.  In any event, the reason for the disbelief is apparent in this case from the use of the word ‘implausible’.  The disbelief arose from the tribunal’s view that it was inherently unlikely that the events had occurred as alleged.”

23. The manner in which the Tribunal analysed the applicant’s claims in evidence and reached its findings and conclusions rendered it, in the circumstances, unnecessary for the Tribunal to ask the question – what if I am wrong in rejecting crucial elements of the applicant’s claim?  It is not necessary for a Tribunal to ask the question – what if I am wrong? – in relation to each finding and conclusion it makes or reaches.  Much will depend upon the manner in which the Tribunal makes a particular finding or reaches a particular conclusion.  The Tribunal paid close attention to the applicant’s claims and evidence and, in numerous respects, analysed those claims and that evidence in particular detail.  It is clear from the reasoning of the Tribunal that it made its findings and reached its conclusions with a firm degree of confidence.  Not only did the Tribunal find the applicant’s evidence, in general, contradictory, implausible and inconsistent with independent country information; it was not satisfied that the applicant was a credible witness and found his written evidence “vague, ambiguous and either fabricated or at best, highly confused”.  In relation to each material (or, as the applicant put it, crucial) issue the Tribunal made specific findings and gave reasons for so doing.  The observations of the majority of the High Court in Minister for Immigration & Ethnic Affairs v Guo (supra) demonstrate that, in such circumstances, the Tribunal was not required to ask the question – what if I am wrong? – in relation to any issue.  At 576 the majority in Minister for Immigration & Ethnic Affairs v Guo (supra) said:

    “It is true that, in determining whether there is a real chance that an event will occur or will occur for a particular reason, the degree of probability that similar events have or have not occurred or have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future.  If, for example, a Tribunal finds that it is only slightly more probable than not that an applicant has not been punished for a Convention reason, it must take into account the chance that the applicant was so punished when determining whether there is a well‑founded fear of future persecution.
               In the present case, however, the Tribunal appears to have had no real doubt that its findings both as to the past and the future were correct.  That is, the Tribunal appears to have taken the view that the probability of error in its findings was insignificant.  Once the Tribunal reached that conclusion, a finding that nevertheless Mr Guo had a well‑founded fear of persecution for a Convention reason would have been irrational.  Given its apparent confidence in its conclusions, the Tribunal was not then bound to consider whether its findings might be wrong.”

    Similar observations are to be found in Minister for Immigration & Ethnic Affairs v Rajalingam (supra) in which Sackville J (with whom North J agreed) said at [63]‑[65]:

    “63           Although the ‘What if I am wrong?’ terminology has gained currency, I think, with respect, that it is more accurate to see the requirement discussed in Wu Shan Liang and Guo as simply an aspect of the obligation to apply correctly the principles for determining whether an applicant has a ‘well‑founded fear of being persecuted’ for a Convention reason. The reasonable speculation in which the decision‑maker must engage may require him or her to take account of the chance that past events might have occurred, even though the decision‑maker thinks that they probably did not. In the language of s 476(1)(e) of the Migration Act, a failure to do so may constitute ‘an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found’.

    64              In my view, there is no reason in principle, and nothing in the reasoning of the High Court, supporting a general rule that the RRT must express findings as to whether alleged past events actually occurred in a manner that makes explicit its degree of conviction or confidence that the findings are correct.  In Guo itself, the findings were not expressed this way, yet the joint judgment considered it was enough that the RRT appeared to have no doubt that the probability of error was insignificant.  Moreover, had the Court intended to impose such an extraordinary burden on the RRT, it might have been expected to say so.

    65              Nor do I think that there is anything in the reasoning of the High Court which permits a court exercising powers of judicial review to ‘impute’ to the RRT (or other administrative decision‑maker) a lack of conviction or confidence in its findings of fact, such as to warrant a holding that the RRT should not or could not have relied on those findings to hold that the applicant’s fear of persecution was not well‑founded.  To take this course on the basis of the court’s own assessment of the evidence before the RRT, is to enter the territory of merits review.  It is one thing to find error in a decision‑maker’s failure to apply the correct legal test or to comply with statutory obligations (for example, to set out findings on material questions of fact as required by the Migration Act, s 430(1)(c)). It is another to decide what factual findings the RRT should or should not have made.”

1. There is no merit in the applicant’s submission that the Tribunal acted in breach of s 430(1)(c) and (d) of the Act in failing to set out its findings on material questions of fact and failing to refer to the evidence upon which those findings were based. The Tribunal was at pains to identify each material question of fact and to set out its finding in relation to each such question and the evidence upon which its finding was based. The applicant claimed to have a well‑founded fear of persecution at the hands of the LTTE, the armed forces, the SLMC, the Jihad and the government. In each respect the Tribunal made a finding that there was not a real chance that the applicant would be harmed by any of these organisations if he returned to Sri Lanka and it explained why it reached this conclusion. The applicant submitted that the Tribunal had failed to refer to, and deal with, his imputed connection with the LTTE. That submission has not taken into account the Tribunal’s detailed analysis of the issues which arose in relation to the LTTE. In general terms the Tribunal found the applicant’s evidence in relation to the LTTE unsatisfactory. For example, it noted the applicant’s claim that the LTTE’s letter of 20 November 1996 triggered his decision to leave Sri Lanka but then noted that the applicant later told the Tribunal that the LTTE wrote to him nearly a year after he had left Sri Lanka. In any event, the Tribunal was not satisfied that the letter was genuine and it referred to the fact that it was handwritten, had an illegible signature, was on photocopied “Political Wing” letterhead and purported to be from the eastern region although the applicant had not lived there for six years.

2. The applicant submitted that there was an inconsistency in the Tribunal’s reasons because on the one hand it found it implausible that the applicant, a Muslim, continued to help Mohan who was an LTTE member, whereas on the other hand, the Tribunal found it significant that the applicant could not explain to its satisfaction why the LTTE would suspect the applicant had, after many years of friendship and assistance to Mohan, given information about the LTTE to the authorities.  The Tribunal found it implausible that the applicant had continued to help Mohan after the late 1980s because it was not satisfied that the applicant was a credible witness and because such a claim was inconsistent with independent country information about the tension and clashes between Muslims and the LTTE after the LTTE forcefully expelled Muslims from the north in late 1990.  If this be correct, said the applicant, why could it not be that the LTTE would suspect the applicant of giving information about the LTTE to the authorities after many years of friendship and assistance to Mohan?

3. Although there may be an element of inconsistency in these two passages it does not follow that the Tribunal has not made a finding, or not given reasons for such finding, in relation to the applicant’s imputed connection with the LTTE.  As I have already noted there was other evidence before the Tribunal which entitled it to infer, or form the conclusion, that there was not a real chance of the applicant being persecuted by the LTTE if he returned to Sri Lanka.  I have already referred to the Tribunal’s finding that it was not satisfied that the LTTE’s letter of 20 November 1996 was genuine.  The Tribunal also did not accept that the LTTE, repeatedly and without success, asked for the applicant at his sister’s home in Colombo from a time after the bombing until a few days after they sent him the letter on 20 November 1996.  Further, the Tribunal did not accept as plausible that well over a year after the bombing and the death of Mohan the LTTE would write to the applicant wanting to know what, if anything, he told the security forces.  One must also take into account the Tribunal’s general finding that the applicant was not a credible witness.

4. There is no merit in the submission that the Tribunal applied a policy that reports from the Department of Foreign Affairs and Trade were to be accorded greater weight than the evidence of the applicant.  A close reading of the Tribunal’s decision does not disclose the application of any such policy.  Rather, the Tribunal set out the applicant’s claims and evidence, set out independent country information and information from the Department of Foreign Affairs and Trade and made findings and formed conclusions which were open to it on a consideration of the whole of the evidence.

5. There is also no merit in the submission that the Tribunal failed to consider the applicant’s claims cumulatively.  Although the Tribunal considered the general situation of Muslims in Sri Lanka it also paid close attention to the particular situation of the applicant in numerous respects.  Findings which the Tribunal made in relation to the identity of the applicant and the fact that the applicant was carrying an identity card in another name were open to the Tribunal to make on the evidence before it.

6. The submission that the Tribunal had a statutory obligation to set out the basis on which it found the applicant’s claim implausible is answered simply by an analysis of the Tribunal’s reasons.  The Tribunal explained by reference to the evidence why it found the applicant’s claims and evidence implausible.  The submission is also answered by the observation of McHugh J in Re  Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (supra) set out in par 22 above.

7. None of the grounds relied upon by the applicant in his amended application, his written contentions or his oral submissions have been made out.  The amended application will be dismissed with costs.

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

Associate:

Dated:             21 July 2000

Counsel for the Applicant:	M Sanger
Solicitor for the Applicant:	Mano Associates
Counsel for the Respondent:	J Gibson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	18 July 2000
Date of Judgment:	21 July 2000