Colombage v Minister for Immigration and Multicultural Affairs

[2000] FCA 1904

FEDERAL COURT OF AUSTRALIA

Colombage v Minister for Immigration & Multicultural Affairs [2000] FCA 1904

MIGRATION – protection visa – review of decision of Refugee Review Tribunal – whether failure to set out reasons for decision or findings on material questions of fact – whether failure to give “proper, genuine and realistic consideration”

Migration Act 1958 (Cth) s 430(1)(b),(c) and (d), 476(1)(a)

Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 applied
Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 applied
Anthonpillai v Minister for Immigration and Multicultural Affairs [2000] FCA 1368 mentioned

DULIP THILAN BHATHIYA COLOMBAGE v THE MINISTER FOR
IMMIGRATION AND MULTICULTURAL AFFAIRS
NO V 572 OF 2000

HEEREY J
22 DECEMBER 2000
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 572 OF 2000

BETWEEN:	DULIP THILAN BHATHIYA COLOMBAGE APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	HEEREY J
DATE OF ORDER:	22 DECEMBER 2000
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The 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 572 OF 2000

BETWEEN:	DULIP THILAN BHATHIYA COLOMBAGE APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	HEEREY J
DATE:	22 DECEMBER 2000
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicant is a Sinhalese Sri Lankan national. He seeks review under Pt 8 of the Migration Act 1958 (Cth) of a decision of the Refugee Review Tribunal affirming the decision of a delegate of the Minister not to grant him a protection visa. The applicant was born in 1973 and arrived in Australia on 29 December 1996.

   The applicant’s case before the Tribunal

2. The applicant completed his secondary education at a Catholic school in 1992.  He then commenced working for his father in a photography business which operated in predominantly Tamil areas.  The applicant supports some degree of freedom for Tamils in the North Eastern provinces of Sri Lanka.  He supports the UNP party and has worked for it at elections, and in particular the 1994 elections.  The other major political party in Sri Lanka is the PA (People’s Alliance) party.  After the elections in 1994 PA supporters harassed and assaulted people like the applicant.   The applicant helped in preparations for the visit by the Pope to Sri Lanka in January 1995, including making transport arrangements.  Buddhist monks were against the visit.  They warned that they would take reprisal actions. 

3. One of the applicant’s Tamil customers was a young man called Vasu who settled in the applicant’s area after having been displaced during the Indian Peacekeeping Force operations.  The applicant helped Vasu to settle in Wernapuwa.  Vasu helped the applicant by bringing him photographic equipment from Tamil Nadu in southern India.  The Buddhist monks were against any close connection with India.

4. A few days after the bombing of the Central Bank in Colombo on 31 January 1996 the Special Task Force (STF) raided the applicant’s business premises and found some flash guns with southern Indian addresses.  The alleged that similar instruments were being used by some subversive elements in Colombo.  They asked where Vasu was.  The STF arrested the applicant on 4 February 1996 and detained him in an “unauthorised centre” for two months.  During this time he was assaulted, harassed and questioned.  At the end of the first month the STF directed that the applicant should undergo military training and work in the Tamil areas as a photographer with army platoons moving to consolidate the areas.  The applicant “reluctantly accepted the offer although such a move was against (his) political conviction”.  After he became “mentally sick” the platoon leader gave him leave to return home.  Whilst with the forces the applicant was assaulted and abused, not fed at proper times and made to do menial work such as washing clothes.  From the first week in July 1996 Buddhist monks were visiting the applicant’s home.

5. The Convention grounds relied on by the applicant were race, religion and political opinion.  He feared that if he returned to Sri Lanka he would be killed by people in the PA or extremist Buddhist organisations. 

   The Tribunal’s decision

6. The Tribunal found on the basis of an Australian High Commission cable of December 1995 and US State Department 1999 Country Report that there was no evidence that former and current UNP members were harassed by the authorities in Sri Lanka.  The Tribunal continued:

   “The Tribunal accepts that at the time of the 1994 elections there may have been attacks of varying severity upon UNP supporters, ranging from tearing down posters to physical assaults.  The Tribunal finds that the Applicant’s assistance to the Pope’s visit, providing some trucks to his fellow parishioners and helping decorate part of the Papal route, would not have been seen as an anti-People’s Alliance act and therefore to suggest it would attract adverse attention from PA supporters is not credible.  The Tribunal finds that the Applicant was a low-level supporter of the UNP and that there is no evidence before the Tribunal to support any claim by the Applicant that he would face a real chance of serious harm or punishment because of his support of the UNP if he returned to Sri Lanka.

   The US Report at page 24 states:

   ‘c.       Freedom of Religion

   The Constitution gives Buddhism a foremost position, but it also provides for the right of members of other faiths to practice their religions freely, and the Government respects this right in practice. Despite the special status afforded by the Constitution to Buddhism, major religious festivals of all faiths are celebrated as public holidays.’

   The Tribunal quoted this extract to the Applicant and the Applicant denied that it stated the actual position in Sri Lanka, however, the Tribunal prefers the US report and finds that the Sri Lankan Government would provide protection for the Applicant from Buddhist groups if he sought it.  The Tribunal finds the Applicant’s claims of being in danger from Buddhist groups either because of his limited involvement in the Papal visit or his Roman Catholic religion to be implausible, because he had such limited involvement and because he was only an ordinary church member.  The Tribunal has found that the authorities would protect him.

   The Tribunal finds the Applicant’s claims about his illegal detention by the Special Task Force (STF) because he was falsely accused by Buddhists of being pro-LTTE even more implausible.  The Applicant’s claimed mistreatment by the STF, because he wasn’t fed at regular times and made to do menial jobs and to have been forced to act as a war photographer for the STF, makes the claims even less credible.  The Tribunal finds that such treatment would not in any event be serious enough to constitute persecution.

   The Tribunal similarly rejects his claims to have been of interest to the security forces because of the sale of contraband flash guns to suspected LTTE members as lacking credibility.  In any event, the investigation of the sale of contraband would be an appropriate investigation of possible breaches of laws of general application in a non discriminatory way (ie not Convention related).  Even on the Applicant’s story, which the Tribunal has rejected, the security forces did not charge him and ceased questioning him about possible LTTE involvement.  This would not be surprising given that the Applicant is a Sinhalese from a wealthy background.”

7. The Tribunal on the basis of the evidence as a whole was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention and thus did not satisfy the criterion set out in s 36(2) of the Act for a protection visa.

   Arguments on the review

8. Counsel for the applicant relied on what was said to be a breach of s 430(1)(b), (c) and (d) in that there was a failure to set out reasons or findings on material questions of fact or a reference to evidence or other material on which the findings of fact were made, all of which amounted to a failure to observe procedures required by the Act: s 476(1)(a), Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469. Counsel argued that the Tribunal failed to set out its reasons for finding that the applicant’s claim that he was in danger from Buddhist groups was “implausible”. The stated reasons, being limited involvement in the Papal visit and ordinary church membership, were not in fact reasons, but statements without reference to any evidence in support. The logic of the decision was not exposed. Alternatively, the Tribunal did not comply with s 430(1)(d) in that it failed to refer to the evidence on which this finding was made. The only evidence on point, a letter in support from Father Tissera of St Joseph’s Church Wernapuwa of 1 March 1997, was not referred to.

9. This argument is contrary to the principles stated in Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at pars 64-66 where McHugh J said:

   “
   [64]  In Addo [v Minister for Immigration and Multicultural Affairs] the court said:

   Section 430(1) does not impose an obligation to do anything more than to refer to the evidence on which the findings of fact are based.  Section 430 does not require a decision-maker to give reasons for rejecting evidence inconsistent with the findings made.  Accordingly, there was no failure to comply with s 430(1) of the Act.
   …
   It is not necessary, in order to comply with s 430(1), for the tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding which it made.

   [65]  In my opinion, this passage correctly sets out the effect of s 430(1)(c) and (d).  However, the obligation to set out ‘the reasons for the decision’ (s 430(1)(b)) will often require the tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings.  Whenever rejection of evidence is one of the reasons for the decision, the tribunal must set that out as one of its reasons.  But that said, it is not necessary for the tribunal to give a line-by-line refutation of the evidence that is contrary to findings of material fact made by the tribunal.  Indeed, to do so would be contrary to the direction in s 420 of the Act that:

   (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.

   [66]  In this case, the tribunal made an express finding that it did not accept the prosecutor’s wife’s evidence.  That was sufficient to comply with the requirements of s 430(1).”

10. That statement is in no way qualified, as the applicant’s argument suggested, by what was said in Singh at par 46.  After noting that there is no specific requirement in s 430 for the Tribunal to give reasons for rejecting or attaching no weight to evidence or other material which would tend to undermine any finding it has made, the majority in Singh said that that view

    “is subject to the important qualification that if one of the reasons which actually induced the RRT to come to its decision was that it decided to reject or place no weight on particular material, then s 430(1)(b) would require disclosure of that element of the RRT’s actual reasoning process, see Durairajasingham.”

11. The majority’s express reference to Durairajasingham suggests that their Honours did not see any inconsistency.  In essence, if part of the Tribunal’s reasoning is that it does not accept the applicant’s version, it is not obliged to say any more than that. 

12. In a similar argument, the applicant contended that the Tribunal failed to set out its reasons for finding that the applicant’s claim that he was detained because he was falsely accused by Buddhists of being pro-LTTE was “even more implausible”.  It was said that no country information or other evidence was referred to in support of this finding and that no reasoning process was set out.  It is not known why the Tribunal considered the claim to be implausible or “even more implausible”.

13. For the same reason, if the Tribunal thought a particular part of the applicant’s account was inherently unlikely or unbelievable, it was not obliged to do any more than state that.

14. Similar arguments were advanced in relation to the Tribunal’s findings as to mistreatment by the STF and being under suspicion because of the sale of contraband photographic equipment.  The answer to these arguments must be the same.

15. The applicant also argued that the Tribunal failed to give “proper, genuine and realistic consideration” to the applicant’s case on its merits:  Anthonpillai v Minister for Immigration and Multicultural Affairs [2000] FCA 1368 at pars 16 and 17. It was said that it was “wholly inadequate” for the Tribunal to account for the applicant’s evidence at the hearing on the basis of “amplification” of his earlier written statement. The complaint here seemed to be that in its reasons the Tribunal set out in full the submission of the applicant dated 24 January 1997 and also noted that he had made other written submissions and given oral evidence at the hearing. It was also said that the Tribunal’s approach was marked by quoting lengthy excerpts from country material and in most cases failing to link its findings to the country material.

16. In my opinion there is no substance in these complaints.  The Tribunal’s reasons show that it dealt adequately with the case presented by the applicant and rejected it largely because of key aspects being considered inherently implausible.  This the Tribunal was entitled to do.  No error has been demonstrated.

    Orders

17. The application will be dismissed.  There will be an order that the applicant pay the respondent’s costs, including reserved costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate:

Dated:             22 December 2000

Counsel for the Applicant:	G Gilbert
Solicitor for the Applicant:	Saatchi & Co
Counsel for the Respondent:	M Kennedy
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	18 December 2000
Date of Judgment:	22 December 2000