Coomarasamy v Minister for Immigration and Multicultural Affairs

[2000] FCA 1720

FEDERAL COURT OF AUSTRALIA

Coomarasamy v Minister for Immigration and Multicultural Affairs [2000] FCA 1720

COOMARASAMY & ANOR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 585 OF 2000

STONE J

28 NOVEMBER 2000

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 585 OF 2000

BETWEEN:

MURUGESU COOMARASAMY
FIRST APPLICANT

PARAMCHOTHY COOMARASAMY
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

STONE J

DATE OF ORDER:

28 NOVEMBER 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs.

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	N 585 OF 2000

BETWEEN:

MURUGESU COOMARASAMY
FIRST APPLICANT

PARAMCHOTHY COOMARASAMY
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:	STONE J
DATE:	28 NOVEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicants, Mr and Mrs Coomarasamy, citizens of Sri Lanka arrived in Australia on 11 August 1998.  On 9 September 1998, they lodged an application for protection visas with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (Cth) (“the Act”). Mrs Coomarasamy did not make an independent claim and her claim to a protection visa depended on her husband’s claim. Therefore, throughout these reasons he is referred to as the applicant. On 24 December 1998, a delegate (“Delegate”) of the Minister for Immigration and Multicultural Affairs (“Minister”) refused to grant protection visas to the applicants. Mr and Mrs Coomarasamy applied to the Refugee Review Tribunal (“Tribunal”) on 25 January 1999 for a review of the Delegate’s decision. In a decision dated 2 May 2000, handed down on 17 May 2000, the Tribunal affirmed the Delegate’s decision not to grant protection visas to the applicants. Mrs and Mrs Coomarasamy now apply to this Court for review of the Tribunal’s decision.

2. After considering a valid application for a visa and being satisfied that the criteria in s 65 of the Act have been met, the Minister must grant a visa to remain in Australia. One of the matters specified in s 65 is that the criteria for the visa specified by the Act or the regulations have been satisfied.

3. Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951, as “amended” by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (compendiously, “the Convention”).  As a party to the Convention, Australia has undertaken protection obligations to a person who is a “refugee” as defined in the Convention.

4. Article 1A(2) of the Convention provides that a refugee is any 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 is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5. Criteria to be satisfied by an applicant for a protection visa at the time of the decision on the application also include the criterion specified in cl 866.221 of Schedule 2 to the Migration Regulations 1994 (Cth), which is that the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Convention.

6. The Tribunal’s decision is a “judicially reviewable decision” (s 475(1)(b) of the Act); the Applicant was entitled to apply to this Court for review of it on certain grounds (s 476); and the Court has the jurisdiction provided by Part 8 of the Act, but no other jurisdiction with respect to it (ss 485, 486).

   REASONS FOR DECISION OF THE TRIBUNAL

7. The Tribunal commenced its reasons for decision by referring to the procedural background, the legislative framework and the law relating to the Convention definition of a “refugee”.  It then turned to consider the applicants’ claims and evidence.

   Background

8. The applicant practiced as a medical laboratory technician and, between 1950 and 1987, he was employed by the Sri Lankan Department of Health. In June 1987 he retired from his employment and set up a private laboratory in Chavakachcheri which is in the northern district of Jaffna in Sri Lanka. In 1996, the Sri Lankan Army gained control of much of the area around Chavakachcheri from the Liberation Tigers of Tamil Eelam (“LTTE”) but there remained some pockets which were still controlled by the LTTE.

9. The applicant’s practice consisted of analysing blood and urine samples. Some of the samples came from the Sri Lankan Army and Police personnel and some from medical practitioners in the surrounding areas, including from areas controlled by the LTTE. However, when the Army ordered him not to accept any more work from the LTTE controlled areas, he discontinued this work.  In March 1998, a member of the LTTE, carrying a hand grenade, came to his laboratory and demanded an explanation as to why he was not accepting any specimens from the LTTE areas. Despite a warning that he should not do any work for the Army and the Police, he continued to do this work.

10. In April 1998, the applicant was assaulted by two LTTE militants. His laboratory equipment was damaged and he was warned that the matter would be taken to LTTE headquarters.  The applicant’s injuries resulting from this assault were such that he was sent by the International Committee of the Red Cross by ship to Colombo for medical treatment.  In July, two members of the LTTE came to his flat in Colombo and started harassing the applicant and his wife, calling him a traitor and pulling her by the hair.  They demanded that the applicant pay 100,000 rupees to them as a fine for closing down his laboratory.  This amount was later negotiated down to 50,000 rupees, which the applicant paid.  After that incident, the applicant applied for a visitor’s visa and came to Australia and since that time he and his wife have been staying at his daughter’s home.  His daughter is an Australian citizen.  The applicant’s two sons had left Sri Lanka in about 1968, and one now lives in Germany and the other in Canada.

11. In support of his application for a protection visa the applicant claimed to fear persecution by both the LTTE and the Sri Lankan authorities. He claimed that the LTTE needed his services and would force him to work for them. He claimed that the threats that he received in Colombo and the fact that he had to pay money to the LTTE showed that the government authorities were not in a position to protect him. In relation to the Sri Lankan authorities, he claimed that the Army would insist that he continue his practice and, because he is of Tamil ethnicity, would regarded him being in sympathy with the LTTE if he did not. If he worked for the army and not the LTTE, then the LTTE would regard him as a traitor.

12. The evidence, which the applicant gave at the Tribunal hearing, was consistent with the claims made in his statement. He also submitted two letters from friends in Sri Lanka and some newspaper clippings. These letters confirmed the applicant’s assessment that the LTTE would continue to pursue him if he were to return to Sri Lanka. The Tribunal found the applicant to be, on the whole, a credible witness. It considered his claims in the context of independent evidence concerning the current political situation in Sri Lanka and treated his claims to fear persecution by the government and by the LTTE separately.

    Fear of the Sri Lankan authorities

13. The Tribunal summarised the applicant’s concerns about the Sri Lankan authorities thus:

    “The applicant’s claims and evidence were to the effect that he fears harm by the government authorities because he is a Tamil and according to his evidence ‘all Tamils are automatically suspected’ of being with the LTTE.”

    .

14. The Tribunal then considered whether these claims fall within the Convention reason of political opinion and race. It accepted that an imputed political opinion could satisfy the Convention requirement. However, the Tribunal did not accept that the applicant would be imputed with a pro-LTTE opinion if he returned to Sri Lanka.

15. The Tribunal pointed out that the applicant is elderly, has worked for the government for 37 years without incident and that he had no problem having his passport renewed at the Sri Lankan Consulate. Independent evidence considered by the Tribunal indicated that the applicant did not fit the profile of persons “who would fall under scrutiny by the security forces as possible LTTE suspects”. Such people are typically young Tamils from the north or east. The Tribunal summarised the position as follows:

    “The applicant is elderly, has a history of service to the government, and has had no problems with the authorities in the past. There is nothing to suggest that the applicant was of any adverse interest to the Sri Lankan authorities at the time he departed Sri Lanka, nor is there any evidence to suggest that the applicant would be of any adverse interest to the Sri Lanka authorities in the foreseeable future upon his return to Sri Lanka. ”

    Fear of LTTE

16. The Tribunal considered the applicant’s claim to fear persecution by the LTTE by reason of his political opinion, real or imputed. It pointed out that it is not sufficient that an applicant may be perceived to hold a political opinion. It is necessary that “those who persecute must be motivated to persecute for reasons of the political opinion held by or imputed to the victim”. The Tribunal accepted that the applicant:

    ·    was assaulted by the LTTE for ceasing to test LTTE samples while continuing to carry out the same tests for the army and the police; and

    ·    was obliged to pay money to the LTTE as a penalty for closing his laboratory.

17. The independent evidence considered by the Tribunal suggested that the LTTE is “one of the most ruthless terrorist organisations in the world today and that those people who are branded as traitors or who are politically opposed to the LTTE are dealt with severely by the LTTE.” In the Tribunal’s view the actions of the LTTE in merely asking for money suggested that they did not regard the applicant as a traitor or as politically opposed to them. If they had this view they would have dealt with him more harshly.  In this regard, the Tribunal noted that the applicant’s own evidence indicated that he  was not physically harmed by the LTTE in Colombo and that after he had paid the money the LTTE ceased to have any further interest in him.

18. The RRT did not accept the applicant’s claim that if he returned to Sri Lanka, he would be forced to re-open his laboratory.  The Tribunal pointed out that there was no suggestion that the LTTE had attempted to force him to continue to work or to re-open his laboratory at any time after he had closed it in mid-May 1998 either while he remained in Chavakachcheri or after he went to Colombo. It gave no weight to the claim that the LTTE would attempt to do these things more than two years later.

19. Similarly, the Tribunal gave no weight to the letters of support submitted by the applicant stating that:

    “It is clear from their text that they were written at the request of the applicant by admitted friends who have a vested interest in aiding and abetting the applicant to achieve his goal of being recognised as a refugee. The Tribunal finds these letters to be self serving and therefore does not give weight to them.”

20. For these reasons, the RRT was not satisfied that the applicant, for reasons of his political opinion, had a well-founded fear of persecution in Sri Lanka by the LTTE in the foreseeable future. In view of this finding, it was not necessary for the Tribunal to consider the question of relocation by the applicant from his home in Chavakachcheri. However the Tribunal did consider this issue in the light of independent evidence that fighting in the region of Chavakachcheri had become very intense. It found that the applicant had “the means and the know-how” to relocate to a less troubled area.

    CONSIDERATION

21. The application for an order of review in these proceedings was filed on 2 June 2000. On 12 October 2000, in compliance with an order of Hill J, the applicant filed a particularised application. Unfortunately, this particularised application did not materially assist either the respondent or the Court. The application claimed that the Tribunal “failed to consider all substantial claims and all relevant available information in support of them, and failed to deal, properly or at all, with material before it”. It particularised certain aspects of the applicant’s claim and stated that the Tribunal “failed to make findings” about those aspects, namely:

    “… the Tribunal failed to make findings about the applicant’s claim to have a well founded fear of persecution he would provoke or attract if he were to be sent to Sri Lanka where the militants have set their eye on the applicant.”

22. In addition it was claimed that:

    “The Tribunal failed to make findings about whether the applicant in those circumstances could avail himself of the protection of the Sri Lankan authorities or of access to a legal system which could provide a just means by which he could enforce his legal rights in relation to his person and property and be protected from persecution in both his hometown, Colombo and elsewhere in Sri Lanka.”

23. It was further alleged that the Tribunal failed:

    (a)to make findings on material questions of fact as required by s 430 of the Act; and

    (b) to review the decision of the Delegate as required by s 414 of the Act;

    and that these failures constituted grounds for review under s 476(1) (a), (b), (c), (d), (e) and (g) of the Act.

24. The submissions made by Mr Krishnar, on behalf of the applicant seemed to be directed mainly to an argument on the merits. In his submission, the Tribunal had come to the wrong conclusion. At various points in his submissions Mr Krishnar stated that the Tribunal had not given “due weight” to certain facts; that it had “not addressed the facts in issue as they ought to do”; that it had come to an “erroneous conclusion”.

25. The submissions as to the merits of the Tribunal’s decision may well have been appropriate if this Court was authorised to review the merits of the Tribunal’s decision. However, the Court’s jurisdiction is strictly limited. It is not entitled to review the merits of the Tribunal’s decision. Section 476 of the Act sets out the grounds on which decisions of the Tribunal may be reviewed. Subsections (2), (3) and (4) of s 476 narrow these grounds. As Gleeson CJ and McHugh J stated in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 522:

    “… it is clear that in important respects the jurisdiction of the Federal Court to review decisions under the Act has been severely truncated.”

    The full Federal Court recognised this in Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845 (“Singh”) at [36], when it stated that:

    “… the Act manifests an overall policy that the way in which the RRT goes about its task is to be subject to judicial review by the Federal Court, though the merits of its decision are not.”

26. However, two of the submissions made for the applicant went beyond merits review, namely the claims under ss 430 and 414 of the Act.

27. Section 430 requires the Tribunal to prepare a written statement that sets out its decision, its reasons for the decision, and its findings on any material questions of fact and refers to the evidence or other material on which the findings of fact were based. A failure to observe the requirements of the section enlivens the ground of review in s 476(1)(a); Singh. Section 430 does not impose any obligation on the Tribunal to come to the correct decision or to disclose in its statement a satisfactory process of reasoning. However, it does require that the Tribunal set out its findings on any material questions of fact. In Singh, Black CJ, Sundberg, Katz and Hely JJ held that:

    “If the RRT fails to make a finding on a fact which is, in truth, as a Court subsequently determines, a material fact, then s 430(1)(c) will not have been complied with, even though the RRT has recorded its findings in relation to the facts before it that it regarded as material …the RRT is under a duty to make, and to set out, findings on all matters of fact that are objectively material to the decision it is required to make. It must make finding on questions of fact that are central to the case raised by the material and evidence before it. In this respect, s 430 sets a standard of decision-making the RRT is required to observe ”.

28. Having reviewed the Tribunal’s reasons and the evidence that was put before it, it is my opinion that the Tribunal’s written statement complies with the requirements of s 430 as elucidated in Singh. The basis of the Tribunal’s decision that the applicant did not meet the criteria for the grant of a protection visa was that he did not have a well founded fear of persecution by either the Sri Lankan authorities or by the LTTE. It found on the evidence before it (including the independent evidence concerning the political situation in Sri Lanka) that he would not be imputed with a pro-LTTE opinion by the Sri Lankan authorities and that the LTTE did not have an ongoing interest in him.  It did not reject the applicant’s account of the mistreatment that he and his wife had suffered. In fact, it found the applicant to be, “on the whole, a credible witness”. It was not inconsistent with this finding for the Tribunal to find, as it did, that there was no Convention related reason for the incidents described by the applicant or any likelihood of future persecution for a Convention reason.  The Tribunal’s findings were open to it on the evidence. It is not to the point that it could have reached a different conclusion.

29. Mr Krishnar, however, submitted that the Tribunal’s finding of the applicant’s credibility was inconsistent with its rejection of the applicant’s claim. The problem seemed to lie in Mr Krishnar’s failure to distinguish between the two quite separate questions that the Tribunal had to ask about the applicant’s evidence. The first question was whether the applicant had given a truthful account of his experiences. The second, and quite separate, question was how much weight should be attached to this evidence, especially when considered in the context of independent evidence.

30. I do not find any substance in the submission that the Tribunal failed to review the decision of the Minister’s delegate as required by s 414 of the Act. The Tribunal considered the evidence and came to its conclusion. As Mr Smith, counsel for the respondent, argued in his written submissions, the Tribunal did not have to set out its findings on all of the material before it. It only had to set out those finding that were material to its decision. I find that the Tribunal did discharge its obligations under s 414.

31. Accordingly I must dismiss the application.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:             28 November 2000

Solicitor for the Applicant:	S T Krishnar
Counsel for the Respondent:	Mr J. Smith
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	24 November 2000
Date of Judgment:	28 November 2000