Jegatheeswaran v Minister for Immigration and Multicultural Affairs

[2000] FCA 1728

FEDERAL COURT OF AUSTRALIA

Jegatheeswaran v Minister for Immigration & Multicultural Affairs
[2000] FCA 1728

MIGRATION – decision of Refugee Review Tribunal affirming decision not to grant protection visa – applicant Tamil citizen of Sri Lanka – whether Tribunal failed to consider cumulative effect of past events causing applicant harm – whether Tribunal failed “to have regard” to country information – whether Tribunal failed to refer to evidence on which a material finding of fact was based – whether Tribunal based its decision on a particular fact that did not exist

Migration Act 1958 (Cth) ss 424(1), 430(1)(d), 476(1)(a), (c) & (e)

Tharmalingam v Minister for Immigration & Multicultural Affairs (unreported, Federal Court of Australia, Lindgren J, 19 May 1998) referred to
Kaur v Minister for Immigration & Multicultural Affairs [2000] FCA 1401 referred to

MARKANDU JEGATHEESWARAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 861 OF 2000

MOORE J
30 NOVEMBER 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 861 OF 2000

BETWEEN:	MARKANDU JEGATHEESWARAN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	30 NOVEMBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application is 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 861 OF 2000

BETWEEN:	MARKANDU JEGATHEESWARAN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MOORE J
DATE:	30 NOVEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for judicial review by Markandu Jegatheeswaran ("the applicant") of a decision of the Refugee Review Tribunal ("the Tribunal") of 28 June 2000 affirming a decision of a delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant the applicant a protection visa.  A similar decision was made in relation to the applicant's wife but that decision is not in issue in these proceedings.

2. The applicant is a national of Sri Lanka and of Tamil ethnicity.  He and his family arrived in Australia on 29 October 1996.  It was not in issue that the applicant had been a clerk working in the Muslim Commercial Bank in Colombo from March 1988 until 1996.  Nor was it in issue that he had married in 1993 and that both he and his wife were ethnic Tamils residing in Colombo.  In the account he gave in support of his application, he described various incidents that had occurred in Sri Lanka before his arrival in Australia.  In each he had suffered harm because of his Tamil ethnicity.  The Tribunal found that only two of them had occurred.  The Tribunal was prepared to accept that the applicant was detained or checked in the way described by the applicant in two paragraphs set out shortly.  The first incident arose after an attack on oil depots in Colombo by the Liberation Tigers of Tamil Eelam ("LTTE") in October 1995.  The applicant said five members of the security forces came to his house in the middle of the night and forcibly entered the house.  Some were armed and some were masked.  The applicant was questioned.  The applicant's account was:

   “8.  I was taken into custody and taken to the Wellawatte police station for further investigation.  At the police station, I was shown photos of five Tamil youths and asked whether I had seen them in Colombo.  I did not recognise the Tamil youths.  I was extensively interrogated about my job, friends and my political views on the ethnic issues.  In particular, they asked whether Tamils in our neighbourhood sympathised with the LTTE and whether I had any knowledge of the LTTE shelters or hide outs in our area.  As I had been the only Tamil who had been working in the bank for the last eight years, they also wanted information about whether there were any financial transactions by the LTTE through the bank in which I worked.  After they finished questioning me I was taken to a cell where eight other Tamil prisoners were held.  We shared a small cell for two days.  I was verbally abused.  There were no proper sanitary facilities and the conditions were inhumane.  The floor of the prison was full of dirt and I could not sleep because of the congestion and the mosquitoes.  The floor was concrete and, as there were eight of us, we had to sleep standing upright.  The food they served was appalling and inedible.  I was photographed, finger printed and released, without any charge after two days.”

3. The second incident of detention or checking the Tribunal accepted had occurred arose after a massive bomb explosion at the Central Bank in the heart of Colombo on 31 January 1996.  The applicant's account of this incident was:

   “12.  Following the explosion of the Central Bank, Colombo was not safe for Tamil people to walk around freely for one month.  In that month I went to work but Tamil people were seriously harassed on the streets for identifications and suspected of LTTE terrorism.  The tensions in Colombo eased by late February.  I was concerned to walk on the streets fearing arrest merely for being Tamil.  My National Identity card says that I was born in Jaffna.  This would cause me more problems.  Tensions mounted again in the aftermath of the train bomb explosion at the Dehiwella railway station on the 24^th of July 1996.  Tamils in Colombo were expecting a backlash against them by the security forces.  On that day, I was travelling from my office to home and at the Wellawatte junction I saw a large contingent of armed forces checking all vehicles and the identity cards of all passengers.  A few years ago if you showed the national ID you would be freed without any harassment.  But those days are gone, and now even if I showed my ID reading ‘born in Jaffna’ I would have been in trouble just being a Tamil.  I had to get off the bus and show both my national and bank ID cards.  I suspect that they were not satisfied with my identity because I was taken into a nearby parked military vehicle.  I was body searched and asked whether I had any relationship with the LTTE Tigers.  Although I was able to speak good Sinhala, because of fear I lost my composure and I replied in English.  One of the interrogators shouted at me and punched me twice on my face.  He used obscene words and demanded that I should talk in Sinhala.  After 15 minutes I was freed.”

4. It is convenient to refer to various parts of the decision of the Tribunal as I deal with each of the grounds of review.  The first ground of review was based on the following passage in the Tribunal's decision:

   “The Tribunal is prepared to accept that the Applicant husband was detained or checked as described in paragraphs 8 and 12.  The Tribunal finds that such checks and tensions are not serious enough to amount to persecution.  The Tribunal finds that the punching described in paragraph 12 on page 7 was not serious enough to constitute persecution.  The Applicant husband was released after each such episode, which the Tribunal finds, showed he was of no continuing interest to the authorities.”

5. The applicant alleged that this passage revealed an error of law in that the Tribunal failed to consider the cumulative effect of the events that occurred and what that might mean if the applicant were to return to Sri Lanka.  Reference should also be made to an additional passage of the Tribunal's decision:

   “The Tribunal accepts that the Applicant husband and wife are Tamils from Jaffna and that this means that they may have had there [sic] identities checked from time to time in Colombo and may even be detained for short periods while such identity checks are made.  The Tribunal finds that such identity checks, including detention for short periods up to a few days are not serious enough to constitute persecution.”

6. It may be accepted that the cumulative effect of events causing harm should be considered in determining whether a person has been and, in the future, might be subjected to persecution: see Tharmalingam v Minister for Immigration & Multicultural Affairs (unreported, Federal Court of Australia, Lindgren J, 19 May 1998). As I noted in Kaur v Minister for Immigration & Multicultural Affairs [2000] FCA 1401:

   “Had the Tribunal, in fact, adopted such an approach it would clearly have amounted to an error of law in breach of s 476(1)(e) of the Act, and perhaps also to a constructive failure by the Tribunal to exercise its jurisdiction (see Sellamuthu v Minister for Immigration & Multicultural Affairs (1999) 90 FCR 287), resulting in a breach of s 476(1)(c). As noted by Kirby J in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu”) at 294 - 295 it is necessary for the Tribunal to ‘consider all the relevant possibilities by looking back at the entirety of the material placed before [it]’, and the decision-maker must ‘[stand] back from the particular grounds and consider ... the case in its entirety’.”

7. However the question in this case is whether the passage relied on in fact demonstrates error of his character.  In my view, it does not.  The passage itself discusses collectively the incidents that the Tribunal found had occurred.  Considering them collectively, the Tribunal found they were not serious enough to amount to persecution.  It cannot be assumed, as the applicant's contention does, that their collective consideration does not also involve a consideration of their cumulative effect.  No error has been demonstrated.

8. The second ground has two aspects. The first involves the duty imposed on the Tribunal by s 424(1) of the Migration Act1958 (Cth). That sub-section authorises the Tribunal to “get any information that it considers relevant”. The sub-section goes on to impose a duty on the Tribunal to “have regard to that information in making the decision”. For the purposes of these proceedings the Minister was prepared to accept that this involved a procedure that had to be observed for the purposes of s 476(1)(a). The contention of the applicant was that the Tribunal obtained a US Department of State report (the 1999 Country Reports on Human Right Practices (Sri Lanka)) and a cable from the Department of Foreign Affairs and Trade and did so because, as s 424(1) provides, it considered it relevant information. Thus, it was contended, the Tribunal was bound to have regard to that information. This it did not do because it said in its decision:

   “The Tribunal has regard to the following first 2 and 14th pages in the US report on Sri Lanka and in particular to the portion in bold at page 18, herein:”

9. The Tribunal then sets out some but not all of that report. Counsel for the applicant referred to passages in the report that were not quoted by the Tribunal that were said to be relevant. One related to an incident in December 1997 when three Tamil prisoners were hacked to death in prison. In my opinion, the approach of the Tribunal does not illustrate a failure to "have regard" to the information it gathered. First it cannot be inferred from the Tribunal's observations in the passage quoted above that it did not have regard to other parts of the report. It is, in my opinion, an untenable suggestion that by specifying two parts of an extract of a report as parts it "ha(d) regard to" (and the extract (which is much lengthier) is quoted in the decision) it can be inferred that the Tribunal did not have regard to the remainder of the quoted extract. It must have done so, at the very least, for the purpose of identifying which parts it might specifically refer to in the way it did in the quoted passage. Additionally, in a later passage the Tribunal again referred to the US report and the DFAT cable. It said, in substance, that it preferred the report and cable to an Amnesty International report that the applicant had provided. To make that comparison it must have had regard to the contents of both the report and cable. This aspect of the second ground is therefore not made out because the Tribunal did, in my opinion, have regard to both documents. Accordingly it has been unnecessary to consider what is comprehended by the notion of "information" and, more broadly, the operation of s 424(1). In particular, it has been unnecessary to consider whether "information" might include an entire document (if this was the form the information took) obtained by the Tribunal, those parts of it that are objectively relevant or only any parts of the document the Tribunal itself "considers relevant".

10. The second aspect of the second ground concerns the following passage from the Tribunal's decision:

    “The Tribunal has considered the material provided by the Applicants and prefers the US Report and the above Cable CX49036 and finds that unless there is something that raises the profile of either or both of the Applicants above that of Tamils from the north they do not face a real chance of persecution.”

11. It was submitted that on one view of this passage it contained two elements. The first involved the Tribunal expressing an opinion about the country information (its preference for the report and cable) and the second was a finding about whether the applicant and his wife faced a real chance of persecution were they to return to Sri Lanka. On this approach, it was submitted, this second element constituted a material finding of fact and there was no reference to the evidence and material on which the finding was based. This involved, it was submitted, a failure to comply with a duty established by s 430(1)(d).

12. In my opinion, this submission does not pay sufficient regard to the Tribunal's reasons as a whole.  The Tribunal had earlier made a finding that after release from the two incidents of detention (one for two days and another for fifteen minutes) the applicant was of no interest to the authorities.  It also found that the detentions had not raised his profile above that of a Tamil male from Jaffna.  The Tribunal's discussion of these matters was fairly clearly based on its earlier express acceptance of only part of the account of the applicant which had been set out in its decision in detail.  That discussion involved a consideration of what inferences might reasonably be drawn (from those parts of that account) about the applicant's profile and the attendant risk of persecution.  Accordingly, I am satisfied that the Tribunal made sufficient reference to the evidence and other material on which its finding was based.

13. The last ground of review involved a contention that the Tribunal based its finding on a particular fact and that fact did not exist.  This, it was submitted, is apparent from the passage of the Tribunal's decision quoted in par 10 above.  The relevant fact was that the report and cable said that a Tamil from the north does not face a real chance of persecution if their profile is not above that of Tamils (I assume as a general class) from the north.  It was common ground that the report and cable did not say this.  While the sentence in question is poorly crafted I do not consider it can be reasonably said that a finding of the type alleged was made.  It may be accepted that the reference to the report and cable is linked, conjunctively, in the sentence to the issue of the profile of Tamils from the north and the basis for the linkage is obscure.  However it is not clear to what precise use the Tribunal was putting any information in the report and cable and whether, in the Tribunal's mind, that information was intended to relate to either the profile of the applicants or the position of Tamils from the north (or both).  However it is a large step to take to then say that from this difficult sentence one can conclude that a finding of the character alleged was made.  It involves, in my opinion, an unduly narrow and critical analysis of the sentence.

14. The applicant has not demonstrated reviewable error on the part of the Tribunal.  I dismiss the application and order the applicant to pay the Minister's costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:            30 November 2000

Counsel for the applicant:	Mr L Karp
Solicitor for the applicant:	Craddock Murray Neumann
Counsel for the respondent:	Mr R Bromwich
Solicitor for the respondent:	Blake Dawson Waldron
Date of Hearing:	24 November 2000
Date of Judgment:	30 November 2000