Goonewaradana, Gowinda Waduge Chinthaka Mahinda v The Minister for Immigration and Multicultural Affairs

[1998] FCA 912

FEDERAL COURT OF AUSTRALIA

MIGRATION - Refugee Review Tribunal - finding that objective element of well founded fear test not satisfied - whether there was no evidence to justify the making of the decision - operation of ss 476(1)(g) and 476(4) of the Migration Act 1958 (Cth)

Migration Act 1958 (Cth) - ss 420, 476(1)(a), 476(1)(g), 476(4)

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300

GOWINDA WADUGE CHINTHAKA MAHINDA GOONEWARADANA v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
SG 1 of 1997

MANSFIELD J
ADELAIDE
24 JULY 1998

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 1 of 1997

BETWEEN:	GOWINDA WADUGE CHINTHAKA MAHINDA GOONEWARADANA APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		MANSFIELD J
DATE OF ORDER:		24 JULY 1998
WHERE MADE:		ADELAIDE

THE COURT ORDERS THAT:

1. Application dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 1 of 1997

BETWEEN:	GOWINDA WADUGE CHINTHAKA MAHINDA GOONEWARADANA APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MANSFIELD J
DATE:	24 JULY 1998
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

The applicant seeks review of the decision of the Refugee Review Tribunal (“the Tribunal”) given on 2 December 1996.  By that decision, the Tribunal determined that it was not satisfied that the applicant is a refugee as that term is defined in the Convention relating to the Status of Refugees done at Geneva in 1951 as amended by the Protocol relating to the Status of Refugees done at New York in 1967 (“the Convention”). It accordingly affirmed the decision of the respondent not to grant to the applicant a protection visa under s 36 of the Migration Act 1958 (Cth) (“the Act”), as he was not a person to whom Australia owes protection obligations under the Convention.

This application was instituted on 2 January 1997.  After it was initially listed for hearing, it was adjourned for a time as the applicant who had previously had the benefit of legal representation no longer had that representation.  It was necessary for him to take steps to ensure that his case was adequately presented before the Court.  In the meantime, by press release dated 13 June 1997, entitled “Decisions on certain long term temporary residents” the respondent announced the decision of the Australian Government to create new visa classes to cover (inter alia) specified citizens from Sri Lanka who arrived lawfully in Australia on or before 1 November 1993.  The applicant fell within that description, but of course, following the appropriate legislative and administrative arrangements being implemented, it was necessary for him to meet the particular criteria then to be prescribed in respect of that proposed new visa category.  He indicated his intention to do so.  An application has therefore been duly made.  This matter was adjourned from time to time whilst that application was considered, but it has not yet been determined, and the respondent renewed its request to have this matter determined.  I note that, irrespective of my decision on this application for judicial review of the decision of the Tribunal, the applicant has extant his application presently under consideration for the new class of visa announced by the respondent on 13 June 1997.

The applicant was born in 1965, and is of Singhalese extraction.  His family are from Jaffna, and he was brought up in Jaffna.  In December 1984, whilst he was in Colombo on family affairs, his parents and his only sibling were killed in a massacre of several hundred persons by the Liberation Tigers of Tamil Eelam (LTTE), the Tamil Tigers.  He did not return to Jaffna, but then remained in Colombo between 1985 and 1990.  He arrived in Australia in June 1990 with a three month visitor’s visa on a valid Sri Lankan passport.

He first applied for refugee status on 24 April 1991, but that application was rejected. On 19 April 1995, he made a second application, then for a protection visa under s 36 of the Act. That application was rejected by the respondent on 18 August 1995, and it was that decision which was reviewed, and then rejected, by the Tribunal.

For the applicant to succeed in being eligible to be granted a protection visa, he must establish that he is a person to whom Australia owes protection obligations under the Convention.  He will do so if he can show that he has a well-founded fear of being persecuted for a Convention reason should he return to Sri Lanka:  Art 1A(2), and that he is unable or, owing to such fear, is unwilling to avail himself of the protection of Sri Lanka.  The elements of the phrase “well-founded fear” have been definitively addressed by the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. It is necessary that there be both a subjective fear of persecution for a Convention reason if he were to return to Sri Lanka, and an objective element to provide the foundation for that fear. As the High Court explained, that objective element is made out if there is a “real chance” of the applicant being persecuted for a Convention reason should he return to Sri Lanka.  Mason CJ at 389 said that:

“. . . a fear of persecution is “well-founded” if there is a real chance that the refugee will be persecuted if he returns to his country of nationality.”

Similar observations were made by Dawson J at 398 and by McHugh J at 429.

The claims of the applicant before the Tribunal and reiterated before the Court were, as described by the Tribunal, threefold.  They were:

1. That because the applicant had been a member of the “Green Tigers” apparently during about 1985 and 1987, during which he had embarked upon three missions of a commando type, he had a real and well-founded fear that upon his return to Sri Lanka, he would be killed or seriously injured, or interned, by the Sri Lankan government.

The applicant described the “Green Tigers” as a special force in the Sri Lankan army, which involved six months training after his enlistment in 1985 and then spasmodic special missions apparently to infiltrate and eliminate groups opposed to the government, and which was paid a fee for each mission.  He now believes the Sri Lankan government is eliminating all members of that group.

1. That because of his family background, he would be subjected to physical violence and possible death from the LTTE were he to be returned to Sri Lanka.

He described in this regard having worked in Colombo following his parents death, but in about 1987 he was taken from a bus at knife point by representatives of the LTTE, and tortured and interrogated.  It was unclear whether he believed that to be because he was a survivor of the massacre in which his parents and sibling were killed, or because his family had ongoing property and business interests in Jaffna, or perhaps a combination of both.  He said that he had been bayoneted in both legs and in the back, and his right big toe nail and the toe nails of the little toes on each of his feet had been removed during that time.  He managed to escape.  For a time he remained in Colombo under an alias, and he said he changed residence to avoid further contact by the LTTE, although he maintained his job.  That is the only occasion upon which the applicant complained of contact with the LTTE.  A report of a medical officer of the Australian Government Health Service dated 4 September 1992 provided that:

“. . . there were two 4cm long healed lacerations that were consistent with having been cut with a knife and having healed spontaneously.  The toe nails were generally normal but the two smallest toe nails showed signs of having been significantly injured, in the past, and now do not have the same texture as the other toe nails.  The left great toe nail was slightly more ingrown than the right.

. . .

I conclude that Mr Goonewardana appears to have stigmata consistent with his claimed history.  I would point out that toe nails usually grow back normally after being removed, and only become subsequently deformed if the deeper nail bed is deformed by trauma or infection.”

The Tribunal noted that medical report in its reasons.

1. The applicant also complained that he feared that if he were returned to Sri Lanka the JVP (Janatha Vimukthi Peramuna) political party, formerly a terrorist group, might also inflict harm on him or kill him because of his association with the Green Tigers.

There is no suggestion that the Tribunal misapprehended the applicant’s claims.  It accepted that the applicant subjectively feared returning to Sri Lanka so that that component of the well-founded fear was satisfied.  It also accepted that, if true, the consequences which he feared would amount to “persecution” within the meaning of the Convention, and the Tribunal also appears to have assumed for the purposes of considering whether there was in fact a “real chance” of persecution if he returned to Sri Lanka that the apprehended consequences would be for a Convention reason.  It addressed the applicant’s three claims in turn.

The Tribunal first considered his fear of the Sri Lankan government.  It concluded:

“Having regard to the inconsistencies in his evidence, the inherently implausible nature of his claims and the timing of them, the Tribunal has a positive state of disbelief that the applicant was a member of a special force engaged in clandestine commando operations against the JVP and the LTTE.

Accordingly the Tribunal is satisfied that there is not a real chance that the applicant would be targeted by the Sri Lankan Government, the JVP or the LTTE as a result of his membership of a special military force for political opinions imputed to him from activities engaged in by such a special force.

As he is a Singhalese salesman from Colombo, and he was not a member of the Green Tigers, the Tribunal is satisfied there is not a real chance that the applicant would be persecuted by the Sri Lankan Government if he returned.”

It is unnecessary to rehearse in these reasons the inconsistencies in the evidence referred to, or the observations as to why his version of those matters was implausible, but it is noteworthy that the first occasion upon which he indicated any involvement in the Green Tigers organisation was when he came to give evidence before the Tribunal on 22 November 1996.  He had not made such claims in respect of his previous visa application, either to the delegate of the respondent or to the Refugee Status Review Committee, nor on his current application for a protection visa to the delegate of the Minister.

In respect of the applicant’s second claim concerning the LTTE, the Tribunal referred in detail to the evidence.  There is nothing to indicate that it did so other than appropriately, including as to the medical evidence.  The applicant has physical signs consistent with injury to his small toe nails and lacerations to his legs.  It observed, however, that the medical report did not “conclusively establish” that his injuries were received in the manner claimed.  Again, it rejected his claim in the following terms:

“Having regard to the numerous inconsistencies in the dates given for this claimed incident, the inconsistency in the applicant’s evidence in regard to the number of toenails he allegedly had removed, the inconclusive nature of the origin of the stigmata he bears, and the generally implausible nature of the claims that he would be tortured for no particular reason and that he could run some distance with serious leg and toe injuries, the Tribunal has a positive state of disbelief that the applicant has been kidnapped and tortured by the LTTE.

. . .

Further the Tribunal does not accept that the LTTE would expend scarce resources on a person such as the applicant who poses no threat to them and who offers no political advantage to them.  Given that the LTTE have shown no interest in the applicant in the past, the Tribunal is satisfied that there is not a real chance that they would target the applicant for persecution in the future if he returned to Colombo.”

Accordingly, as it did not accept the veracity of his claims in relation to his fear of the LTTE, it was not satisfied that there was a real chance that he would be persecuted by the LTTE if he returned to Sri Lanka.

A similar conclusion was reached in respect of his claimed fear of the JVP.  He has never been questioned or detained by the JVP.  As the Tribunal did not accept the veracity of his claims that he was a member of the Green Tigers, and as he had not otherwise had any difficulties with the JVP in the past, the Tribunal expressed itself as satisfied that there is not a real chance that the applicant would be specifically targeted or mistreated by the JVP if he returned to Sri Lanka.  It noted material before it that the JVP is no longer a terrorist group but a legal political party.  It concluded that, having regard to its non-violent political movement and status, the JVP did not pose a threat to the applicant and there is not a real chance that it would persecute the applicant if he returned to Sri Lanka.

The Tribunal then reviewed each of the claims in a cumulative way, but did not alter its conclusion that there was no real chance of the applicant suffering persecution even if he were returned to Sri Lanka, notwithstanding his claims taken together.

The applicant appeared at the hearing in person. Perhaps understandably, and despite efforts to direct him to identify specific grounds of review available to him under s 476 of the Act, his submissions in large measure simply constituted what appears to have been a rehearsal of matters put by him or on his behalf to the Tribunal. He also sought to adduce in evidence, and it was admitted with the consent of the respondent, a video tape recording of a recent television program reporting on current affairs in Sri Lanka, particularly in relation to the activities of the LTTE. That document, in my view, presents a picture which is consistent with the material to which the Tribunal had regard in assessing the current activities of the LTTE within Sri Lanka. It does not provide any foundation for the making out of error on the part of the Tribunal.

The oral submissions of the applicant can fairly be characterised as involving him claiming that the Tribunal had made the wrong conclusions of fact on the material before it.

It is of course plain that the Court’s role under Pt 8 of the Act is not to provide a review of the merits of the Tribunal’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Li (1996) 185 CLR 259 at 272. That, however, was effectively what the applicant sought. He did not identify any particular provision of s 476 of the Act upon which he relied to indicate any reviewable error on the part of the Tribunal. In the course of questioning him during his general submissions, I sought to educe any points he might wish to make which could be attached to any of the available grounds of review. None emerged in that process; his complaint was really no more than that the Tribunal had made wrong findings of fact.

As he suggested at one point that the Tribunal had failed to give a full consideration to all the material before it, out of an abundance of caution the respondent tendered the transcript of the Tribunal hearing. I have carefully considered it. In my view it does not disclose any error on the part of the Tribunal in the way it conducted the hearing. In particular, it does not disclose any failure by the Tribunal under s 420 of the Act to provide a mechanism of review that is fair and just, or to act according to substantial justice and the merits of the case; those are matters which might attract judicial review in appropriate circumstances under s 476(1)(a) of the Act: Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300. The Tribunal gave the applicant the opportunity to give evidence as fully as he wished, to call other witnesses or to present other statements in support of his claims, to comment upon material topics, and to make submissions including through the migration agent present on his behalf during the hearing. It appears to have invited the applicant’s comments upon the particular matters concerning it. Its reasons do not disclose any relevant material adduced in evidence to which it has not had regard. I am not to be taken as indicating that those matters are all necessary for the Tribunal to meet its obligations under s 420, or that the Tribunal’s failure to meet any such matter will necessarily provide a ground of review under s 476(1)(a) or otherwise under s 476. I refer to those matters as indicating, in the present circumstances, the extent to which the Tribunal in fact went to give the applicant a fair hearing. On the other hand, I am also not seeking to indicate that I would necessarily have reached the same factual conclusions as the Tribunal in all respects. It is not the role of the Court to make such an assessment, but the role of the Tribunal, provided it does so without falling into reviewable error.

Notwithstanding that the applicant did not specifically address the grounds of review identified in the amended application for review, in the circumstances I have severally considered them.  They were prepared at a time when the applicant had the benefit of legal representation.  They are threefold.

Firstly, it is alleged that in respect of a number of findings of fact by the Tribunal, it erred in terms of s 476(1)(g) of the Act in that there was no evidence or other material to justify the making of the decision. Section 476(4) provides:

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

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

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

The amended application invokes both sub-clauses, in respect of each of nine particular “findings” by the Tribunal.  There is some overlap in them, and in particular four variously identify the finding of the Tribunal that the applicant does not face a real chance of persecution if he returns to Sri Lanka.  It is said that there was no evidence to justify the making of that decision.  The balance relate to more specific findings, namely that the victims of human rights’ abuse are overwhelmingly Tamels and not Singhalese, that the applicant’s “profile” was that of a young male Singhalese salesman who lived and worked in Colombo for five years before his departure for Australia and speaks Singhalese, that the applicant’s personal profile does not match that of a typical person to be picked up by the security forces, and that notwithstanding other medical and other evidence he had not been a member of the Green Tigers and had not been kidnapped and tortured by the LTTE. Section 476(1)(g) and (4) have been the subject of judicial analysis for example in; Xiang Sheng Li v Refugee Review Tribunal (Sackville J, 23 August 1996, unreported); Lakhbir Singh v The Minister for Immigration and Ethnic Affairs (Mansfield J, 4 April 1998, unreported); Ali Sabir Malik v The Minister for Immigration and Ethnic Affairs (Mansfield J, 4 April 1998, unreported), and in relation to its analogue in the Administrative Decisions (Judicial Review) Act 1976 (Cth) in Western Television Ltd v Australian Broadcasting Tribunal (1986) 12 FCR 414; Akers v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 363 at 374-375; Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212.

The applicant has not identified the particular matter required by law to be established before the Tribunal could reach its decision. If compendious factual findings may fall within the purview of s 476(1)(g) and (4), then a decision granting an application for a protection visa would require as a matter of law that it be established that the visa applicant was a person to whom Australia had protection obligations under the Convention, and in turn that the visa applicant had a well-founded fear of persecution for one of the reasons specified in Art 1A(2) of the Convention. If there was no evidence or other material from which those compendious facts, or one of the critical underlying primary facts to support the finding, could reasonably be concluded, then ss 476(1)(g) and (4)(a) might be invoked. That may be drawn from the positive obligation upon the respondent to grant a visa if the prescribed criteria for it are satisfied: s 65(1)(a)(ii), and the powers and obligations of the Tribunal: s 415(1) and (4). This is not such a case. The applicant did not procure the factual findings he sought. In the absence of satisfaction on the relevant matters, the application is to be refused. I do not think that the absence of satisfaction that all or any one or more of the prescribed criteria are satisfied gives rise to the operation of s 476(4)(a) in respect of each of every of those criteria, simply because that subsection refers to the positive establishment of particular matters, rather than to the failure to establish them. Thus, in my view, s 476(4)(a) does not assist the applicant in respect of the matters identified. Even if I assume to the contrary in his favour, I think he must fail in this regard. That is because, as the Tribunal’s reasons indicate, there was evidence or other material from which the Tribunal could reasonably be satisfied on each of the matters identified in the amended application. Its reasons indicate the evidence and other material available to it to reach those conclusions. In my view, it is not made out that that evidence and other material was such that the Tribunal could not reasonably be satisfied that each of those matters as recorded in its reasons was made out.

The provisions of subs 4(b) might more easily be invoked by the applicant as a matter of practice. The Tribunal’s conclusion that the applicant was not entitled to the visa sought was because it was not satisfied that he met the criteria, in particular that he was a person to whom Australia owed protection obligations under the Act. Fundamentally that conclusion was because it rejected his evidence of important events as unreliable. Once it did so, the factual foundation for his claims largely dissipated. Even if I assume that the findings that it was not satisfied that the applicant was a member of the Green Tigers, and was kidnapped and tortured by the LTTE, are findings to which s 476(4)(b) can apply, it is not shown that those “non facts” did not exist.  In forming its views as to the reliability of the complaints of the applicant, the Tribunal is entitled to have regard to other external matters available to it in evidence and other material, the manner of presentation of the applicant in the course of his evidence, the history of events including the stage in the process of his application or applications at which certain allegations first emerged, and inherent probabilities and improbabilities.  In relation to the applicant’s reliability in respect of his membership of the Green Tigers and his kidnapping and torture by the LTTE, the Tribunal has positively found that it did not accept his evidence of those matters.  There was material before the Tribunal upon which it could reach those conclusions.  There was also evidence and other material available to the Tribunal, which it has referred to in its reasons, upon which it has made the other particular findings complained of.  In my view, therefore, that ground of review is not made out.

The amended application next seeks to invoke s 476(1)(a) of the Act, claiming that the Tribunal failed to conduct the review in accordance with s 420 of the Act. That is said to have been because it focussed only on the applicant’s credibility in relation to his kidnapping and torture by the LTTE, and did not have regard to other evidence in support of his claim, in particular the medical evidence. It is said that the Tribunal gave no weight at all to the medical report. In a slightly different way, those points were made by the applicant in the course of his submissions. However, a perusal of the Tribunal’s reasons indicate that the particular complaints set out in the amended application on this score are simply not sustainable. The Tribunal expressly referred to and considered the medical evidence. The weight which it was to carry was for the Tribunal. It is not correct to say that the Tribunal focussed only on the applicant’s credibility and excluded from its consideration that evidence, or other evidence. It had regard to that evidence in determining whether it found that the applicant’s version of those events was reliable or not. In my view that ground is not made out.

Finally, the amended application complains of an error of law under s 476(1)(e), being an incorrect application of the law to the facts as found by the Tribunal. The particulars contained within the amended application do not really elucidate any such point. They refer to the death of the applicant’s parents and sibling in 1984, and then really complain of the conclusion of the Tribunal that there is not a real chance of the applicant suffering persecution having regard to “all of the cumulative factors” and in not applying the “cumulative grounds test properly” by taking isolated incidents out of context. I am not satisfied that the Tribunal has fallen into reviewable error under s 476(1)(e). It addressed the several claims by the applicant and made findings with respect to them. It was entitled to do so. It considered the claims cumulatively, both having regard to its findings in respect of them and in the sense of reviewing its findings in the light of the claims taken collectively. The applicant’s claims, in any event, were really discrete claims, rather than isolated incidents giving rise to the one more general claim of vulnerability to persecution for a Convention reason. They were not incidents potentially indicative of the one cause for his fear of persecution. It is proper for the Tribunal to have stepped back to review its decision in the context of all the claims and the evidence, lest it focus too narrowly on one or more matters to the detriment of the consideration of all the evidence, or of those limited matters without them being determined in the fuller evidentiary context, and the Tribunal expressly engaged in that process. It did not, as a result, reach any different conclusion on the specific conclusions reached or on its overall decision. In my view, it did not fall into error in its approach.

Accordingly, in my view, the applicant has failed to make out any reviewable error on the part of the Tribunal in reaching its conclusion.

This application is dismissed.

I certify that this and the preceding eleven (11) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield

Associate:

Dated:             24 July 1998

Applicant in person
Counsel for the Respondent:	Mr G Britton
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	9 June 1998
Date of Judgment:	24 July 1998