Dissanayake v Minister for Immigration & Multicultural Affairs
[2002] FCA 976
•7 AUGUST 2002
FEDERAL COURT OF AUSTRALIA
Dissanayake v Minister for Immigration & Multicultural Affairs [2002] FCA 976
Migration Act 1958 s 424(1), 425(1), 427(1)(d), 476(1)(a),
Ahmed v Minister for Immigration and Multicultural Affairs (2001) 184 ALR 343 applied
Hernandez v Minister for Immigration and Multicultural Affairs [2001] FCA 725 applied
Kulwant Singh v Minister for Immigration and Multicultural Affairs [1996] FCA 1013 applied
Kabir v Minister for Immigration and Multicultural Affairs (2001) 184 ALR 295
Masood v Minister for Immigration and Multicultural Affairs [2001] FCA 405 applied
Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 applied
Li v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 125 applied
De Silva v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 364 applied
Xiao v Minister for Immigration and Multicultural Affairs [2000] FCA 1472 applied
Sreeram v Minister for Immigration and Multicultural Affairs (2001) 106 FCR 578 applied
Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 applied
Kola v Minister for Immigration and Multicultural Affairs [2001] FCA 476 applied
Algama v Minister for Immigration and Multicultural Affairs [2001] FCA 476 applied
Chaddha v Minister for Immigration and Multicultural Affairs [2002] FCA 92 applied
Abebe v The Commonwealth (1999) 197 CLR 510 applied
Applicant F v Minister for Immigration and Multicultural Affairs [2001] FCA 304
Guo v Minister for Immigration and Multicultural Affairs (1996) 40 ALD 445 cited
Minister for Immigration and Multicultural Affairs v Wu (1996) 185 CLR 259 cited
Brakni v Minister for Immigration and Multicultural Affairs [2001] FCA 48 cited
Chokov v Minister for Immigration and Multicultural Affairs [1999] FCA 823 cited
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 cited
Minister for Immigration and Multicultural Affairs v Rajalingham (1999) 93 FCR 220 applied
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 cited
Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 applied
Li v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 125 distinguishedROHAN SHIVANTHA DISSANAYAKE and ROHAN MILROY DILHAN DISSANAYAKE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
V 350 OF 2001
SUNDBERG J
7 AUGUST 2002
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 350 OF 2001
BETWEEN:
ROHAN SHIVANTHA DISSANAYAKE
FIRST APPLICANTROHAN MILROY DILHAN DISSANAYAKE
SECOND APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
SUNDBERG J
DATE OF ORDER:
7 AUGUST 2002
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicants pay the respondent’s costs of the application.
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 350 OF 2001
BETWEEN:
ROHAN SHIVANTHA DISSANAYAKE
FIRST APPLICANTROHAN MILROY DILHAN DISSANAYAKE
SECOND APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
SUNDBERG J
DATE:
7 AUGUST 2002
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
BACKGROUND
The applicants are father and son. They are citizens of Sri Lanka who arrived in Australia on 8 November 1999. On 15 November 1999 they lodged an application for protection visas. The respondent’s delegate refused the application. On review by the Refugee Review Tribunal the delegate’s decision was affirmed. The applicants seek review of the Tribunal’s decision by the Court.
CLAIMS BEFORE TRIBUNAL
In the visa application the father claimed he and the son left Sri Lanka due to the father’s active political involvement with the United National Party (UNP). He said he had been harassed and harmed, his property damaged and son kidnapped because of that involvement. He said he feared that their lives will be endangered if they returned because they would not be protected by the police. In a detailed statement submitted to the department on 29 November 1999, the father claimed he had been actively engaged in politics as a UNP supporter since 1975. In 1977 he was instrumental in organising several UNP meetings in his constituency as a result of which he attracted new members. He was involved in a poster campaign and monitored security when speakers addressed meetings. In 1983 he was rewarded for this activity by a job with Air Lanka despite not having any relevant experience. He assisted other UNP supporters with finding work and housing. He became popular in his local area with some people, but was disliked by others. In 1989, due to his political connections, the father became the only qualified International Badminton Federation umpire in Sri Lanka, despite having never having played the game. He has umpired many overseas tournaments.
In 1992 the father provided information to the police as a result of which two men were imprisoned for scheming to cause harm to a UNP Member, Lalith Athulathmudali. After the UNP was defeated in the 1994 general election the father lost many of his privileges. In 1995 he was in charge of a demonstration opposite the President’s office protesting against arbitrary transfers of teachers to rural and war zones. His name was taken by the police. A few weeks later he was stopped by police and accused of parking in a non‑parking zone. He was told by a police officer that he should not cause trouble by organising demonstrations. In January 1999 the father was involved in a protest concerning the unfair allocation of new shops which disadvantaged UNP supporters and favoured People’s Alliance (PA) supporters. The protest was reported in the media. His involvement in the protest resulted in threats to his life by anonymous phone callers. His car was damaged and he was stoned. Complaints to the police were not followed up.
In January 1999 the son came to live with the father. Until then he had lived with his mother, to whom his father is not married and from whom he is estranged. On 25 August 1999, while the father was overseas, two men visited the son and enquired about the father’s whereabouts. The son told them he was overseas. They returned on 28 August with the same enquiry. After the father returned from overseas he learned that the two men he had reported on had been released. He concluded that these were the same men who had been looking for him while he was away, and that they were working for the government. He reported the visits to the police. On 14 September 1999, at about midnight, the two men returned to the house. The father hid during their visit. They caused considerable damage. He reported the matter to the police, but claimed they were reluctant to help him.
The father took the son out of school, moved to another suburb and used pseudonyms for their safety. On 18 September 1999 the son’s mother phoned the father to say that some unknown men had inquired about the son. She called again on 28 October saying that a man had asked one of her neighbours if the son had come to Ampara, where she lived. On 31 October the son went shopping early in the morning but did not return. The father reported the disappearance to the police. The son turned up about 6am the following day saying he had been kidnapped, but had escaped when his captors went to sleep after drinking alcohol. The father decided it was unsafe to remain in Sri Lanka, and on 2 November left the country. He said he feared for his and his son’s lives because of his political and social activity in Sri Lanka.
At the Tribunal hearing the father amplified some of his earlier claims. He said he was not a financial member of the UNP in later years, but was a very active supporter. He said a close friend had found out that some people were planning to assassinate a government member. He reported the matter to the police. The two men were charged. He thought the case was heard in the Colombo Magistrates Court. He did not know what the charge was or what sentences were given. When asked about the men’s identities, he said he had never met them. He knows them as “Three Wheel Chuti” and “Patch Some”. He thought they were released in 1999, and fears they will kill him if he returns because they have government backing and the police will not support him.
A submission from the father’s adviser of 21 August 2000 states that efforts to find particulars of the two men had proved unsuccessful. In a further statement the father said he had been informed they were from Gangodawilla, near Colombo. In a submission from the adviser dated 6 September 2000 the names and criminal records of two men were provided. This information was provided under cover of a letter from a friend. The information on the convictions was as follows:
“(a) the names of the two men are –
(i)Hiribura Gamage Lal
(ii)Kiranagamage Luckshman alias Raju alias Happawana Raju
The applicant was also informed that late Mr Laith Athulathmudali did not want the incident of the attempt to assassinate to be published, but he wanted the police to punish the persons who intended to assassinate him. Subsequently, the above two men had been framed for some offences and they were later convicted and sentenced.
The applicant also received the following details about the said two men:
(i)Hiribura Gamage Lal
Charged for stealing fire arms, attempted murder and causing fear.
His case number is – GMC50906.
He was remanded on 11 June 1992.
He was released from prison on 28 July 1999.Further, the applicant was informed that following the arrest of Hiribura Gamage Lal in June 1992, the other suspect Kiranagamage Luckshman went into hiding and later he was arrested in November 1992.
(ii)Kiranagamage Luckshman alias Raju alias Happawana Raju
Charged for inhumanly committing a murder using a fire arm. (The applicant was also informed that the above murder took place in 1988 and it was an unsolved case.)
He was remanded on 04 November 1992.
His case number is: H/C 16/41
Imprisoned at Bussa prison
He was released on 2 August 1999.”The Tribunal had before it country information about Sri Lanka which showed, amongst other things, that
·the UNP is the largest and best organised political party in Sri Lanka, and some of the most prominent members of the community are active supporters
·the other main political party is the Sri Lanka Freedom Party (SLFP) led by the current Prime Minister Bandaranaike
·the current government is the PA, a left wing coalition that includes the SLFP
·even in opposition the UNP continues to have political influence, holding 95 of the 225 seats in the Parliament with 41 per cent of the vote, and retains its political dominance in Colombo municipality
·political violence between UNP and PA supporters at the local government level takes place around election times or in retaliation for events that occurred during election times, but the government is not supportive of violent activities by PA members or supporters against UNP members, and does not turn a blind eye to such conduct
·there have been no cases of the PA government or its local officials framing UNP supporters on criminal charges, security breaches or thuggery
·the August 1994 parliamentary election and the November 1994 Presidential election were monitored by international observers and were regarded as free and fair, and there were few incidents of violence
·after the PA win, almost no incidents involving PA retribution against UNP members and supporters occurred
·the President has used various platforms to speak out against political violence
·since the 1994 general election politically motivated violence has decreased considerably compared with the time when the UNP was in power
·in 1996 there were a couple of well‑publicised incidents in which both PA and UNP supporters were injured or killed, and supporters of both sides were detained and questioned
·claims of political harassment of UNP members and supporters should be viewed with scepticism; while there may be individual cases of political rivalries leading to violence, all parties have equal access to the law and police protection
·Sri Lanka has an independent judiciary, and the government respects the people’s right to approach the courts.
TRIBUNAL’S REASONING
UNP involvement
The Tribunal accepted that the father was a UNP supporter as he claimed, had been involved in politics since 1975, and had been actively involved during election times. It noted that he did not claim to have experienced harassment or harm as a result of these activities. The Tribunal accepted that in 1995 he participated in a demonstration against the transfer of teachers to rural and war zones, but did not accept that he was in charge of the demonstration as he claimed. In this connection the Tribunal referred to letters the father produced in support of this claim that merely asserted that he participated and assisted in the protest. Because it did not accept that the father’s involvement went beyond this, the Tribunal did not accept that he was blacklisted as a result and falsely accused of parking in a no‑parking zone because of his participation. The Tribunal also accepted that the father may have participated in a demonstration in January 1999 against unfair allocation of new shops, and that he may have received anonymous threatening calls criticising his participation and that his car may have been vandalised. But it did not accept that this incident constituted harm of such seriousness as to amount to persecution. The Tribunal doubted the father’s claim that he was stoned as a result of his involvement. He provided no details of when this occurred, whether he saw who was responsible, or whether he was injured as a result. Even if he had been stoned, the Tribunal did not accept that it was related to his participation in the protest given the vagueness of the details provided, or that it constituted persecution.
The two men
The Tribunal found farfetched the father’s claim that the two men were arrested, tried and imprisoned as a result of information provided to him by a friend which he reported to the police. It said:
“the applicant’s evidence was vague and generally implausible. He was unable to provide any detail about the two men who were allegedly sentenced as a result of the information he provided to the police in either his initial statement or at hearing with the Tribunal despite ample opportunity to do so. When asked for information about these two men at the hearing he stated that he did not know their names other than by their moniker. He stated that he had never met them and knew of their intentions through hearsay. He had no detail of what they intended to do. He was never required to give evidence at their criminal trial. He did not know what they were charged with. He did not know when or where the proceedings took place other than that it was probably heard in the Colombo Magistrates court. The Tribunal finds too difficult to accept that the applicant, who provided the information which led to the apprehension of these two men, would be unable to provide any of these basic details, especially any details as to their identities or what they intended to do. It finds the applicant’s inability to provide this information is inconsistent with him being instrumental in foiling their assassination attempt.”
The Tribunal then considered the information provided in the second post hearing submission of 6 September 2000 relating to the criminal profiles of two persons on murder and related charges, and the father’s claim that they were convicted based on evidence supplied by him. The Tribunal pointed out that there was no evidence to link this information to the applicant. It went on to say:
“given the applicant stated he did not know the names of these men the Tribunal cannot accept that these results are reliable in any way. … Despite speculation by the applicant, the Tribunal does not accept that two men would be convicted on false murder and related charges because a politician wanted the police to punish the persons who wanted to assassinate him but did not want the assassination attempt published. Although the Tribunal need not make a finding on the conviction records, it is notable that the details supplied provide different remand dates and the names/alias do not correspond to the monikers given in the applicant’s oral evidence to the Tribunal. Accordingly, the Tribunal does not accept that these convictions were as a result of information provided by the applicant or that the convictions against the said persons were ‘a frame for other offences, namely the assassination attempt’ which the late Mr Athulathmudali wanted to avoid having published. Given all of the above, it does not accept that the applicant provided information to the police in relation to an intended assassination of an MP.”
In view of the above findings the Tribunal did not accept the father’s claim that his son was visited on two occasions in August 1999 by “the two men” who had been released by the government in order to silence him. It said:
“The Tribunal finds that the applicant gave a simple account of working for the UNP as an ordinary supporter, active mainly at election times. He was an ordinary supporter who worked at the local level. He never held any position in the party or had any organisational role. Despite his claim of being an important supporter of the UNP, he was not a member of the Party. Given this profile, it does not accept that the applicant would be viewed by the President as a serious threat to her re‑election, as he claimed. The Tribunal accepts that two men may have visited the applicant’s son inquiring about the applicant, however, there is nothing to suggest that these men were after the applicant because of his political activities. They did not threaten the applicant son or give any indication as to why they were looking for his father.”
The Tribunal did not accept that the two men on whom the father reported vandalised his home on 14 September 1999. It found it difficult to believe that he would have left his son to contend with the intruders alone, given the concern he expressed for the son’s safety. It accepted that the incident may have occurred, but not that it was related to the father informing on the two men or to his political activities. It went on:
“As stated above, the applicant was an ordinary supporter who, as he himself claimed in his written statement to the Tribunal, had never faced such incidents before. The Tribunal finds that this incident was not related to the applicant’s political profile or activities but was rather a criminal act. It notes that the applicant was not clear who the men were. He claims it was the same men who had come looking for him previously. However, the applicant and his son were not aware of the identity of the men.”
The Tribunal did not accept that the two men the father claimed to have reported were looking for the son in Ampara, as the son’s mother claimed. Nor did it accept that the son was kidnapped by the men. It noted that the son was unable to identify the kidnappers. It found the details of the kidnapping implausible, including the son’s ability to escape on foot while the two men were intoxicated. It accepted that the son may have been kidnapped, but not that the incident was related to the father’s role as informant on the two men or to his political activities.
The Tribunal did not accept the father’s claim that he received threatening calls, and in this connection referred to his profile and the fact that he had not experienced such problems when he was more actively involved in the party. It rejected his claim that he could not rely on police protection, and noted that he had submitted to the Tribunal copies of statements/reports he made to the police of the incidents from August 1999. It did not accept that the police had been instructed not to assist him because of his political opinion.
Conclusion
The Tribunal concluded that the father was not pursued because of his political opinion or because he had reported two men to the police. It followed that it did not accept that he will be pursued by the two men. It found he does not face a real chance of persecution for his political opinion or any other Convention reason if he returned to Sri Lanka now or in the reasonably foreseeable future.
GROUNDS OF REVIEW
Failure to observe procedures
Two failures to observe procedures for the purposes of s 476(1)(a) of the Migration Act 1958 (Cth) were asserted. The first was the Tribunal’s failure to make inquiries of the appropriate Sri Lankan authorities or obtain information, or at least to consider whether to use its powers to do so, to determine whether the information supplied by the applicants as to the identity of the two men and the court records corroborated their claim. It was said that the Tribunal regarded the information as critical to their case, and had asked them for the information they later provided, “indicating that this was all the Tribunal required to corroborate their claims”. It was submitted that the Tribunal “gave the impression that it would obtain any further information if only the court records could be provided”.
Section 424(1) provides:
“In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.”
Section 427(1) provides in part:
“For the purpose of the review of a decision, the Tribunal may:
…(d)require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.”
While ss 424(1) and 427(1)(d) empower the Tribunal to make enquiries and obtain information, neither implies there is a duty to do so. Nor does a failure to consider whether to make inquiries or obtain information constitute a reviewable error. See Ahmed v Minister for Immigration and Multicultural Affairs (2001) 184 ALR 343 at pars 35‑39, Hernandez v Minister for Immigration and Multicultural Affairs [2001] FCA 725, Kulwant Singh v Minister for Immigration and Multicultural Affairs [1996] FCA 1013, Kabir vMinister for Immigration and Multicultural Affairs (2001) 184 ALR 295, Masood v Minister for Immigration and Multicultural Affairs [2001] FCA 405 and Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 at par 86. So far as it relies on s 427(1)(d), the applicants’ submission invites the Court to substitute its own opinion as to what it thinks necessary for that which the Tribunal thinks necessary.
Even if, in an appropriate case, a duty to inquire can arise as a result of conduct engaged in by the Tribunal, no duty arose as a result of the Tribunal’s letter dated 23 August 2000, which was after the hearing, in which the applicants were invited to:
“Comment on the absence of independent evidence to support claim that two men were allegedly sentenced as a result of the applicant’s role as an informant in 1992.”
It is quite impossible to derive from this invitation to comment on the absence of independent evidence, that the Tribunal was indicating that if the applicants provided such evidence, that was all it would require by way of corroboration, or that if court details were provided, it would obtain further information about the details.
The applicants relied on Li v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 125. In that case the Tribunal said it would have an identity card relied on by the applicant examined to test its authenticity. However it failed to do so. Drummond J said the Tribunal could not have justified its decision by the reasons it gave if the card was shown to be genuine. In those “unusual circumstances” his Honour thought the applicant should have the opportunity to try to show that the Tribunal’s failure to have the card checked for authenticity when it said it would do so amounted to an error within s 476(1)(a). The present case is not of that character. All the Tribunal said it would do was check its own data base. There is no suggestion that it did not do that.
The second alleged failure to observe procedures is that the Tribunal failed to give the applicants a real, genuine or proper opportunity to appear before it and give evidence and present arguments as required by s 425(1), which provides:
“The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arsing in relation to the decision under review.”
The applicants submitted that the Tribunal failed to hear evidence from the son. He was present at the hearing, and was the only witness to his kidnapping. It was also said that the Tribunal failed to tell the applicants that, since the father said he did not know the names of the two men, it could not accept that the information in the court records the applicants had provided was reliable. It was said that it thereby “clearly conveyed that it would be no impediment to the claims that the father did not know the real names of the men of his own knowledge”.
In De Silva v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 364 (De Silva) at par 8 the Full Court said:
“It was submitted for the appellant that s 425(1) is not restricted to inviting an applicant, prior to the date set for the hearing, to attend the hearing in order that he or she may give evidence and present arguments, but has a continuing operation during the hearing obliging the Tribunal to identify issues and draw them to the applicant’s attention. We do not accept this construction of the provision. The governing word in s 425(1) is ‘invite’. The purpose of the invitation is to enable an applicant to attend the hearing so that he or she can give evidence and present arguments relating to the issues in the case. On the plain words of the sub‑section the obligation is to invite the applicant to appear. It does not impose on the Tribunal an obligation to identify issues and draw them to an applicant’s attention.”
See also Xiao v Minister for Immigration and Multicultural Affairs [2000] FCA 1472, Sreeram v Minister for Immigration and Multicultural Affairs (2001) 106 FCR 578, Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109, Kola v Minister for Immigration and Multicultural Affairs [2002] FCA 265, Algama v Minister for Immigration and Multicultural Affairs [2001] FCA 476 and Chaddha v Minister for Immigration and Multicultural Affairs [2002] FCA 92.
The applicants’ submissions that in the two respects identified the Tribunal contravened s 425 cannot stand with De Silva and the other cases cited. In any event, the contention that the Tribunal failed to hear evidence for the son is simply wrong. The father was the principal witness. Then the son was asked whether there was anything he wanted to tell the Tribunal, and he responded that he would be killed if he returned to Sri Lanka and that was why he wanted to remain in Australia. The Tribunal then asked him who would kill him if he returned and why. His response was that threats had been made by his father’s “opponents”. He was then asked whether he knew who those opponents were, and he said he didn’t know. It is clear from the context that by the word “opponents” the Tribunal meant the two men who were alleged to have visited the son, caused the father to hide from them and enquired after the son’s whereabouts in his mother’s place of residence. It is clear from the son’s answer that he did not know their names. It is to be noted that the applicants were represented at the hearing by their solicitor. On several occasions he requested the Tribunal to ask the father about various matters, which the Tribunal did. He made no such request in relation to the son.
It is to be remembered that proceedings before the Tribunal are inquisitorial. The Tribunal is not in the position of a contradictor. It is for an applicant to advance whatever evidence or argument he wishes in support of his case. It is not for the Tribunal to run the case for him or advise him how best to advance it. See Abebe v The Commonwealth (1999) 197 CLR 510 at par 187. I do not accept the submission that by encouraging the applicants to seek information from the court records in Colombo in relation to the conviction of the two men the Tribunal “clearly conveyed that it would be no impediment to the claims that the father did not know the real names of the men of his own knowledge”. Had the information obtained by the solicitor accorded with the father’s evidence as to dates, charges and sentences, it may not have mattered that the real names of the accused men were not known to the father. But the information obtained from the court did not corroborate his story. The story was that the two men about whom he informed were planning to assassinate Athulathmudali. The solicitor’s letter conveying the information asserts that the details provided relate to “the two men who were sentenced as a result of the applicant’s information to the police”, and they are identified as the two suspects in connection with the attempt. However, according to the information, Luckshman was not charged with attempted murder, but with a 1988 murder and with no other offence. And whereas the father said he knew the two men only by their aliases, which were notorious, Luckshman’s two aliases contained in the information bear no resemblance to that attributed to him by the father, and no alias is given for Lal. It is absurd to suggest that the Tribunal was representing to the applicants that if they provided the names of two persons sentenced in the Colombo Magistrates Court that would dispel the Tribunal’s concern about the lack of corroboration or lack of evidence as to identity.
Incorrect interpretation of law
The applicants complained of six errors of law involving an incorrect interpretation of the law. The first is that the Tribunal failed to ask itself the critical question presented by the claim. I will pose that question using the applicants’ solicitor’s own language:
“if two men were conducting a vendetta against [the father] including making repeated enquiries as to his whereabouts and anonymous death threats, causing extensive damage to his house and property, and threatening and then kidnapping his son, and if two men whom [the father] claimed to have reported to police in 1992 had been released from prison only a few days or weeks before these accidents, did this collection of circumstances tend to confirm [the father’s] claim to have so reported such men or not?”
It was said that instead of asking this question, the Tribunal asked only whether the details of court records relating to the two men were linked to the father or were reliable. The Tribunal did not fall into error. The starting point of the father’s story was that he had reported the two men in 1992, acting on information provided by an acquaintance. This was his explanation for the harassment he and his son later received when, he says, the men were released from gaol. The Tribunal did not believe he had reported the men. It gave a congeries of reasons for rejecting his account. They are recorded in pars 10 and 11 above. In the light of those reasons, the Tribunal’s description of the father’s claim as “farfetched” was entirely apt. It had indeed a bizarre quality – why would the father take the information provided by an associate sufficiently seriously to report it to the police yet have no interest in discovering the outcome of his report, in terms of the charges that were laid, the sentences imposed, and the identities of the men?
The second error asserted is that the Tribunal examined the information from the court record without having regard to the friend’s evidence that it had been obtained at great personal danger to him. The friend’s letter said the father “must realise what you are asking me is like playing with fire” and “you are putting a knife to my throat”. It was said the Tribunal ignored the friend’s letter because it had already found that the information he had provided was not connected with the father. But, it was claimed, the letter itself showed the connection. It was submitted that the Tribunal thus reached a conclusion without regard to essential material and misunderstood the evidence. The Tribunal did not make this error. It examined the court information, and for the reasons it gave (see pars 10 and 11) rejected the submission that the information corroborated the father’s claim. Once it had done that, the friend’s letter about how he had taken risks to obtain the information was irrelevant. When the Tribunal said there was no evidence to link the information to the applicant, it was not denying that the information had been obtained for the father by the friend, but stating that the information did not corroborate the father’s story that he informed on the men in 1992 thus securing their conviction. The submission that the friends letter “showed the connection” misses this point.
The third error alleged is that the Tribunal failed, contrary to s 424 of the Act, to have any regard to the information in the court record details. The duty imposed on the Tribunal by s 424(1) to have regard to information relates only to such information as it obtains on its own initiative pursuant to that sub‑section: Applicant F v Minister for Immigration and Multicultural Affairs [2001] FCA 304. The information in question was provided by the applicant, and s 424(1) does not apply to it. In any event the Tribunal referred to the records in the manner described in par 11 above.
The fourth error claimed is that, again contrary to s 424, the Tribunal failed to have regard to the friend’s letter and that written by a Member of Parliament on the question whether the father had been pursued either because of his UNP profile or because he had provided information to the police about the two men. Section 424(1) does not apply to these letters. See par 27. In any event this complaint is also baseless. The Tribunal twice referred to the friend’s letter. The Member of Parliament’s letter stated that because of his political activities the father had been subjected to harassments by the PA including the kidnapping of his son. The Tribunal summarised this letter and, in relation to both letters, said that since it did not accept that the father has been pursued by the PA for his UNP support or for having reported the two men, it placed no weight on the letters. See also the discussion in par 25.
The fifth error asserted is that the Tribunal failed to give the applicants the benefit of the doubt, or alternatively imposed too high a standard of proof. There is nothing in the claim that the Tribunal imposed too high a standard of proof. It is true that where there is doubt after all the evidence has been placed before the Tribunal, the benefit of it should be given to the applicant: UNHCR Handbook on Procedures and Criteria for Determining Refugee Status pars 196 and 203. However the Tribunal’s reasons disclose that it was in no doubt about its findings or about its ultimate decision. This is no more than an attempt to reagitate the merits; to argue about the Tribunal’s findings of fact and findings on credibility. The Tribunal directed itself properly as to findings as to credit in cases of this kind, referring to Guo v Minister for Immigration and Multicultural Affairs (1996) 40 ALD 445 at 482 and Minister for Immigration and Multicultural Affairs v Wu (1996) 185 CLR 259 (Wu) at 293. The Court has not had the advantage enjoyed by the Tribunal of observing the witnesses. There is nothing to suggest that the Tribunal misused its advantage. The Tribunal gave its reasons for not believing the father’s account. Those reasons are cogent and persuasive. Its conclusion, based on them, that it did not accept the claim that he was instrumental in bringing to justice the two men who were involved in an attempt to kill a member of parliament was one to which it could reasonably come. It was not an unreasonable conclusion. Even if it were, it would not be an error of law within s 476(1)(e): Brakni v Minister for Immigration and Multicultural Affairs [2001] FCA 48 at par 10 per Spender J for the Full Court. A fortiori where all that can be said is that other minds may not have come to the same conclusion as the Tribunal.
At the hearing the applicant sought leave to add additional grounds of review. This was opposed by the respondent. I said I would deal with the application in my reasons for decision. One of the new grounds is a further alleged error of law, namely that the Tribunal treated a “breach of the law constituting a criminal act as determinative of, and inconsistent with, the existence of a Convention‑based motive for such an act”. When dealing with the claim that the two men were responsible for vandalising the father’s house, the Tribunal said:
“The Tribunal accepts that this incident may have taken place however it does not accept that it was related to the applicant’s informing on the assassination attempt or his political activities. As stated above, the applicant was an ordinary supporter who, as he himself claimed in his written statement to the Tribunal, had never faced such incidents before. The Tribunal finds that this incident was not related to the applicant’s political profile or activities but was rather a criminal act.”
The applicant treats this passage as though it asserts a dichotomy; that a criminal act cannot be Convention‑based persecution. That is what the Tribunal was held to have done in Chokov v Minister for Immigration and Multicultural Affairs [1999] FCA 823. But here the Tribunal said no such thing. It first found the incident was not related to the father’s political profile or activities, and then said it was a criminal act. The natural reading of the words “but was rather a criminal act” is that “it was a criminal act that was not relevantly Convention‑based”. The submission is an exemplar of fine toothcombism. I will allow the amendment even though it must fail.
Incorrect application of law to facts
The contention here is that the Tribunal failed to consider the totality of the evidence; that it considered the claims in isolation and thereby overlooked the fact that the applicants clamed that the two men were conducting a campaign or vendetta against the father. It thereby failed to consider what motive there may have been for such conduct. It also failed to consider whether the campaign or vendetta may have supported the father’s claim to have reported the two men to the police. It was said that the Tribunal’s piecemeal approach caused it to fail to stand back and look at the totality of the evidence and consider whether, viewed as a whole, it tended to support the claims. Reliance was placed on the observations of Kirby J in Wu at 293:
“the decision‑maker must not, by a process of factual findings on particular elements of the material which is provided, foreclose reasonable speculation upon the chances of persecution emerging from a consideration of the whole of the material. Evaluation of chance, as required by Chan cannot be reduced to scientific precision. That is why it is necessary, notwithstanding particular findings, for the decision‑maker in the end to return to the question: ‘What if I am wrong’? Otherwise, by eliminating facts on the way to the final conclusion, based upon what seems ‘likely’ or ‘entitled to greater weight’, the decision‑maker may be left with nothing upon which to conduct the speculation necessary to the evaluation of the facts taken as a whole, in so far as they are said to give rise to a ‘real chance’ of persecution.”
At the beginning of the Findings and Reasons part of its decision, the Tribunal noted that it was obliged to consider the totality of the evidence. It then did so, and made the findings recorded in pars 9 to 14 above. It then stated that it had considered the evidence as a whole in concluding that the applicants did not satisfy the Convention definition of a refugee.
It is now well‑established, notwithstanding Kirby J’s injunction to the Tribunal to consider whether it might be wrong in its findings, that the Tribunal is under no obligation to engage in this exercise where its reasons disclose that it has no real doubt as to its findings. See Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559. In Minister for Immigration and Multicultural Affairs v Rajalingham (1999) 93 FCR 220 at par 67 Sackville J, with whom North J agreed, said:
“If a fair reading of the reasons as a whole shows that the RRT itself had ‘no real doubt’ (to use the language in Guo) that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong. Reasonable speculation as to whether the applicant had a well‑founded fear of persecution does not require a possibility inconsistent with the RRT’s own findings to be pursued. A ‘fair reading’ of the reasons incorporates the principle that the RRT’s reasons should receive a ‘beneficial construction’ and should not be ‘construed minutely and finely with an eye keenly attuned to the perception of error’ ….”
In this case the Tribunal was in no doubt as to the correctness of its central finding rejecting the father’s claim that he reported the two men to the police, so as to give them a reason, after their release, to harass him and the son, or of its other findings. I have not been persuaded that the Tribunal failed to do what it said it was required to do and had done, namely to consider the evidence as a whole.
No jurisdiction/decision not authorised
The claim that the Tribunal “failed to exercise its jurisdiction” relies first on the alleged errors of law considered in pars 25 to 30 above. None of those errors has been made out. Two further matters are relied on. The first is the claim that the Tribunal failed to exercise, or consider whether to exercise, its power to make inquiries as to the court histories of the two men. I have rejected that claim in pars 18 to 20. The applicants sought to amend their grounds to add a further jurisdictional complaint that “by failing to make inquiries in respect of the additional information expressly sought by, and provided to the Tribunal, it failed to take into account a relevant consideration being its conduct of the review process”. It was said that “if the Tribunal indicated that it might make inquiries in respect of an issue, then that was a consideration that was relevant to assessing whether or not to make these inquiries”. The only “inquiry” the Tribunal said it would make was to check its data base. The applicants did not claim it had not done so and there is no evidence to that effect. The Tribunal did not say it would or might make inquiries of the Colombo Magistrates Court about the information provided. This ground is not made out on the facts. It is not necessary to consider whether it is an available ground of review.
The next matter is the claim that the Tribunal failed to take account of the fact that the father had been a longstanding member of the UNP. The evidence about membership as opposed to support of the UNP was rather confused. In the father’s statement forming part of his visa application the words “supporter” and “member” are used interchangeably. At the hearing the father said he was a member and not just a supporter. At first he said he was a paid‑up member. Later he said he was not a paid‑up member because in his constituency there was no such thing. In a statement made after the hearing, he said:
“I also wish to mention that UNP supporters holding good positions in their party branch usually do not pay to become members. Most of them like me contribute a lot to the party. Thereafter the branch do not ask them to pay to become members and in many cases the branch pay the membership fee if necessary. This is the case in other branches too. Only ordinary members pay and become members of the party.”
Although the evidence about paid‑up membership is inconsistent, the father’s evidence at the hearing was that he was a member and not just a supporter. The Tribunal was accordingly wrong when it said he was not a member of the UNP. But that mistake did not give rise to a failure to exercise jurisdiction in the sense discussed in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at pars 81‑84. The important point is that the Tribunal accepted that the father was involved in the UNP’s activities “in the manner described”. That is a reference to his claim that he organised meetings in his constituency, attracted new members, was involved in a poster campaign and monitored security when speakers addressed meetings. See par 9 above. It accepted that he had been involved in politics since 1975 and that he was actively engaged during election times “as claimed”. It accepted that he participated in a demonstration in 1995, that he may have been told by police not to organise protests, and that he may have participated in the January 1999 demonstration. Thus the Tribunal substantially accepted his claim to involvement with the UNP. That it wrongly described him as a supporter rather than a member does not deprive the Tribunal of jurisdiction to make the decision it did. It was a mistake of fact. The error did not affect the exercise of the Tribunal’s power. See Yusuf pars 82 and 84. In the circumstances of the case the application of the wrong label to the capacity in which accepted activities were engaged in is of no moment. It is inconceivable that the Tribunal would have come to a different conclusion if it had treated the father as a member rather than a supporter. It dealt comprehensively with each of his claims as to his actual involvement with the UNP. The applicant relied on the same mistake under the ground in s 476(1)(c) – decision not authorised by the Act or the regulations. What I have said above applies to this ground as well.
No evidence
It was contended that the Tribunal based its decision on three facts that did not exist. See s 476(1)(g) and (4)(b). The first was that the father was not a member of the UNP. The second was that the son was unable to identify his kidnappers. The third was that there was no evidence to link the court records to the father. In Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 220‑221 Black CJ, with whom Spender and Gummow JJ agreed, speaking of s 5(3)(b)of the Administrative Decisions (Judicial Review) Act 1977 (Cth), which is in substantially the same terms as s 476(4)(b), said:
“Section 5(3)(b) does not require the identification of some single particular fact that may be said to be the foundation of the decision. A decision may be based upon the existence of many particular facts; it will be based upon the existence of each particular fact that is critical to the making of the decision. A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious immediate importance. A decision may also be based on a finding of fact that, critically, leads the decision‑maker to take one path in the process of reasoning rather than another and so to come to a different conclusion.”
For the reasons given in par 32, the fact that the father was not a member of the UNP was not critical to the making of the Tribunal’s decision. The decision was not based on that fact.
As to the identity of the kidnapper, the Tribunal said:
“The Tribunal also does not accept that the two men the applicant claimed to have reported to the police were looking for his son in Ampara, as informed by his wife. Nor does it accept that his son was kidnapped by these men as claimed. The Tribunal notes the applicant son was unable to identify his kidnappers. It also finds details of his kidnapping implausible such as his ability to escape on foot while the two men were intoxicated. However the Tribunal accepts that the applicant’s son may have been kidnapped but does not accept that it was related to his father’s role in the connection of the two men for the assassination attempt on Mr Athulathmudali.”
The applicant contends that there was no evidence that the son could not identify his kidnappers because he had been able to see them during his imprisonment. In his interview with the Foundation for the Survivors of Torture the son first said he could not see the men because they kept the room he was in dark. Later he said the men put on a dim lamp and he could see he was in a large room. The letter recording the interview contains this passage:
“We explored how the men appeared to Milroy, Milroy described the men as aggressive thugs, who were alcohol and drug users. He said they had, ‘Big body and not polite when they are talking, say any words’. He also said, ‘They were like a monster. They didn’t look like normal people, they looked like monsters’.”
When the Tribunal said the son could not identify his kidnappers, it meant he did not know who they were. The Tribunal did not say the son could not see his kidnappers. The same applies to the father’s evidence about the raid on his house when he went out the back door and hid in the garden. He said his son “peeped through the window and recognised the two men”. Although the word “recognised” is used, it plainly means “saw”. The case before the Tribunal was conducted on the basis that the names of the men were not known by the father or the son. That was the whole point of the further information that was sought and obtained after the hearing. The fact that the son was able to see his kidnappers does not falsify the Tribunal’s statement that he could not identify them. Neither in his interview with the Foundation nor in the father’s statement that the son peeped through the window is there any identification of the men. Further, when asked at the hearing whether he knew who his father’s opponents were, he said he did not know. See par 23 above.
As to the link between the criminal records and the applicant, the Tribunal said:
“The Tribunal considered the information submitted in a further post hearing submission dated 6 September 2000 relating to the criminal profiles of two felons on murder and related charges and his claim that they were convicted based on evidence supplied by the applicant. However, there is no evidence to link this information to the applicant.”
The applicant submits that there was evidence to link this information to the applicant. The link was expressed as follows:
“the evidence was that [the father] had obtained that information himself through an intermediary. Again, given the letter from [the father’s] informant, there was no evidence at all of the fact on which the Tribunal based its decision.”
As I have said in par 26, this submission is based on a misunderstanding of what the Tribunal meant when it said “there is no evidence to link this information to the applicant”. It was not referring to the method by which the records had been obtained, but to whether there was some connection between the records and the father’s claim that those mentioned in the records were the men upon whom he had informed. Even if the applicants’ construction of the Tribunal’s words is correct, it will not assist them. The fact in question was not critical to the making of the decision. There was a range of reasons for the Tribunal’s rejection of the applicants’ claim that the father provided information to the police in relation to an intended assassination of a member of parliament. See pars 10 and 11.
The applicants sought to amend their grounds so as to add a further fact that did not exist, namely that the son was not aware of the identity of the men who vandalised the home on 14 September 1999. I have dealt with this in the course of dealing with the fact that the son was unable to identify his kidnappers. I will allow the amendment.
CONCLUSION
None of the grounds of review has been made out, and the application must be dismissed.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg. Associate:
Dated: 7 August 2002
Counsel for the Applicants: C G Fairfield Solicitors for the Applicants: Satchi & Co Counsel for the Respondent: W Mosley Solicitors for the Respondent: Clayton Utz Date of Hearing: 24 July 2002 Date of Judgment: 7 August 2002
35
27
0