Kamal v Minister for Immigration and Multicultural Affairs

[2000] FCA 585

FEDERAL COURT OF AUSTRALIA

Kamal v Minister for Immigration & Multicultural Affairs [2000] FCA 585

MIGRATION - application for review of a decision of the Refugee Review Tribunal – the Tribunal failed to deal with a central issue raised on the material before it.

Migration Act 1958 (Cth) ss 36(2), 476(1)(e) and 481

Tharmalingam v Minister for Immigration & Multicultural Affairs (Lindgren J, 9 May 1998, unreported) followed

MOHAMMED HASSEN KAMAL v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 220 of 2000

MATHEWS J
9 MAY 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 220 OF 2000

BETWEEN:	MOHAMMED HASSEN KAMAL APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MATHEWS J
DATE OF ORDER:	9 MAY 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1The decision of the Refugee Review Tribunal dated 16 February 2000 be set aside and the matter be remitted to the Tribunal, differently constituted, for determination in accordance with law.

2The respondent pay the applicant’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 220 OF 2000

BETWEEN:	MOHAMMED HASSEN KAMAL APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MATHEWS J
DATE:	9 MAY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant (“Mr Kamal”) seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 16 February 2000 which affirmed a decision of the respondent’s delegate not to grant him a protection visa.

2. Under s 36(2) of the Migration Act 1958 (Cth) (“the Act”) a criterion for the grant of a protection visa is that Mr Kamal be a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol, (known compendiously as “the Convention”). In order for Australia to have protection obligations to Mr Kamal it must be established that he is a person who:

   “… owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable, or, owing to such fear, is unwilling to return to it.”

   Factual background

3. Mr Kamal is a 54 year old Sri Lankan Muslim who was born in Colombo.  He is married with four children.  In 1980 he went to the northern city of Jaffna to work in his father-in-law’s business in which he had an interest.  Subsequently his wife and children joined him there.  From 1983, a number of liberation fronts were active in Jaffna, including the Liberation Tigers of Tamil Eelam (LTTE).  In order to escape harassment from the other groups, Mr Kamal and his family sought help from the LTTE, who thereafter provided protection for them.  At that time, according to Mr Kamal, Jaffna Muslims were strong supporters of the LTTE.

4. In February 1987 the Sri Lankan Government mounted a major offensive against the LTTE.  Mr Kamal and his family left Jaffna and in due course went to Colombo, where they continued to live until Mr Kamal left for Australia in December 1995.

5. In Colombo, Mr Kamal’s LTTE friends sought his assistance in a number of respects.  He bought vehicles for them and organised the purchase and transmission of clothes, food and medical supplies to LTTE supporters in Jaffna.  He also provided short-term accommodation for LTTE supporters at his home.  He did this not only as an LTTE supporter, but also for financial gain. He received “good commission and even salary” for his work in Colombo.  He was known amongst LTTE supporters as “Colombo Nana”, “nana” being a Muslim name for “elder brother”.

6. On 21 October 1995 there was a devastating explosion at the Kolonnawa oil refinery in Colombo.  This was apparently the work of suicide bombers.  There were a number of casualties.  The Sri Lankan armed forces cordoned the area and searched houses within it, including Mr Kamal’s house, which was close to the refinery.  They found a number of bullets around his home and took him into custody.  He was detained for 5 days during which time he was interrogated and beaten.  He was asked whether he could identify “Colombo Nana” and was told that when the authorities found this man he would be killed.  This at least communicated to Mr Kamal that the authorities were not aware that he himself was “Colombo Nana”.

7. After this incident Mr Kamal decided to leave Sri Lanka.  He obtained an Australian visitor’s visa on 4 December 1995 and left Sri Lanka on 29 December 1995.  At that time he intended to remain in Australia only until there was a settlement of the situation in Sri Lanka, and then to return home.  However there was no settlement, and on 19 July 1997 Mr Kamal applied for a protection visa.  His application was refused by the respondent’s delegate on 23 October 1997.  On 2 November 1997 he applied to the Tribunal for review of the delegate’s decision.  For some unexplained reason there was then a delay of nearly two years.  It was not until 13 August 1999 that the Tribunal conducted a hearing in relation to Mr Kamal’s application.  On 1 September 1999, detailed submissions were sent to the Tribunal on his behalf.  On 16 Febraury 2000 the Tribunal affirmed the delegate’s decision.  It is this decision which Mr Kamal seeks to have reviewed in these proceedings.

   Tribunal’s decision

8. The Tribunal’s decision followed a familiar format.  It referred to the legislation, the Refugees Convention and to the matters which, in general, will need to be established by an applicant for a protection visa.  It then described the “Claims and Evidence”, and finally set out its “Findings and Reasons”.  These last were unusually brief, comprising only three paragraphs.  They bear repetition here:

   “FINDINGS AND REASONS

   The applicant has not claimed that he fears persecution on the ground of his religion, and the independent evidence cited above indicates that Muslims in Colombo are not specifically targeted by the authorities.  He has claimed, however, that he fears persecution on the ground that his cooperation with the LTTE in commercial transactions would impute to him a political opinion adverse to that of the ruling party.

   I accept that the applicant, when conducting a business in Jaffna, sought and obtained protection from the LTTE.  I also accept that after he moved to Colombo he maintained his contacts with the Tamil community for commercial reasons, and that some of his business associates may have had an affiliation with the LTTE.  The business he transacted, however, was purely for profit.  The independent evidence shows that some members of the Muslim community in Sri Lanka continue to supply the LTTE with survival goods: CIS 1998, Country Information Report 153/98: Sourced from DFAT Cable CL847 – Sri Lanka: the forgotten East – human rights and security update, 3 April (CX29541).  I do not accept, however, that the applicant was involved in the supply of arms of any kind.  He mentioned bullets in response to a question from the Tribunal, but did not elaborate on the type or quantity he purportedly supplied.  I do not accept that one of the foremost terrorist groups in the world today would rely on a small-time trader, from whom they obtained everyday items such as clothes, to supply bullets.  In supplying goods to the LTTE, a terrorist organisation, the applicant was contravening a Sri Lankan law of general application.  Inform: Sri Lanka Information Monitor, March 1999 pp5-15 (CX35293) states that Emergency Regulation No.1 of 1998 made it an offence to attend meetings and have other contacts with the LTTE.  This would also include supplying the organisation with goods.  The applicant would, therefore, face prosecution, not persecution in the Convention sense, on return.

   I accept that the applicant and his family were forced to flee their home following the bombing of the Kollonnawa refinery nearby.  I also accept that the applicant, like his neighbours, had to prove his identity before being permitted to return home, a normal procedure following a terrorist attack.  I accept, too, that it is feasible that soon afterwards he was taken to an army camp for questioning because the authorities had been informed of his hospitality to Tamils who were strangers to the district, and who could have been LTTE cadre involved in the refinery bombing.  It is feasible that the applicant was mistreated during the time he was kept in the camp, but he has also claimed that he was released when the authorities could not prove that he was connected with the bombing.  The independent evidence above suggests that such short detentions are commonplace following a major terrorist incident.  Even if the applicant was mistreated during his detention as he has claimed, the likelihood of his being so in the future is remote.  His family has not been harassed following his departure, and he has not claimed that the authorities have been enquiring as to his whereabouts, as they would have if he had been released with reporting conditions, as he has claimed.  The applicant’s fear of persecution for reason of his imputed political opinion, or for any other Convention reason, is not well-founded.”

   Issues on review

9. The substantial issue relied upon by Mr Kamal in these proceedings was the Tribunal’s failure to address the “central issue” which had  been raised in support of Mr Kamal’s contention that he had a well-founded fear of persecution in Sri Lanka.  This was that, by reason of the assistance which he had given to the LTTE whilst he was living in Colombo (which had gained him the nickname of “Colombo Nana”), he would be identified as an LTTE supporter, and would be persecuted because of his imputed political opinion in a manner which would go beyond any punishment for breaching a law of general application.

10. The Tribunal accepted that Mr Kamal had assisted LTTE supporters in a manner which would render him punishable under a generally applicable law.  In fact the law referred to by the Tribunal was Emergency Regulation 1 of 1998, which post-dated Mr Kamal’s departure from Sri Lanka by at least two years.  However in the light of my other findings in this matter, nothing turns on whether the assistance Mr Kamal gave to the LTTE before his departure in December 1995 constituted a breach of the law which would render him liable to prosecution.

11. The respondent conceded that the Tribunal failed to deal directly with Mr Kamal’s claim that, by reason of his identification with the LTTE, he may face persecution because of his imputed political opinions.  However, Mr Jordan, who appeared for the respondent, urged that the Tribunal cured any earlier deficiency in its reasons when it found, in the final paragraph of its decision, that any fear of persecution Mr Kamal might have had was not well-founded.  The substantial question therefore is whether the Tribunal’s failure to advert to the principal basis upon which Mr Kamal said he feared persecution was cured by the comments the Tribunal made in the final paragraph of its decision.

    Discussion of issues

12. In many respects the circumstances of this case resemble those in Tharmalingam v Minister for Immigration & Multicultural Affairs (Lindgren J, 9 May 1998, unreported) (“Tharmalingam”).  Mr Tharmalingam was a Sri Lankan Tamil who came to Australia in March 1997.  In 1985 he moved to Jaffna where worked as a clerk in a bank, later gaining promotion to Chief Accountant of the Jaffna Branch.  Since the late 1980s he had been pressured by the LTTE to give them various forms of assistance.  In January 1995 he was prevailed upon to act as the LTTE’s “bagman” within the bank.  By this means he obtained a sizeable sum of money for the LTTE.  This was known to other bank officers and some bank customers.  In October 1995 Mr Tharmalingam left Jaffna after it was captured by the Sri Lankan army.  He went to Colombo where he remained until his departure for Australia.  His departure was precipitated by his being told that the Sri Lankan army had learnt of his being “bagman” for the LTTE in Jaffna and that it would exact punishment from him.  Once in Australia, Mr Tharmalingam sought a protection visa which was refused by the Minister’s delegate.  He sought review from the Tribunal which dismissed his application and made the following findings:

    “I find that his fears of a CID investigation of extortionary activities at the bank under LTTE orders are not fears of Convention-related persecution, but rather, fear of prosecution for activities judged under criminal law.”

13. Mr Tharmalingam successfully appealed to this Court.  In his judgment, Lindgren J quoted, with approval, the following passages from the Handbook on Procedures and Criteria for Determining Refugee Status Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (Geneva, January 1992):

    “84.Where a person is subject to prosecution or punishment for a political offence, a distinction may have to be drawn according to whether the prosecution is for political opinion or for politically-motivated acts.  If the prosecution pertains to a punishable act committed out of political motives, and if the anticipated punishment is in conformity with the general law of the country concerned, fear of such prosecution will not in itself make the applicant a refugee.

    85.Whether a political offender can also be considered a refugee will depend upon various other factors.  Prosecution for an offence may, depending upon the circumstances, be a pretext for punishing the offender for his political opinions or the expression thereof.  Again, there may be reason to believe that a political offender would be exposed to excessive or arbitrary punishment for the alleged offence.  Such excessive or arbitrary punishment will amount to persecution.

14. Lindgren J found that the ground set out in s 476(1)(e) of the Act had been made out in that the Tribunal had failed to address the question whether Mr Tharmalingam feared persecution for his imputed political opinion arising out of his role as “bagman” for the LTTE, and, if so, whether that fear was well-founded.

15. Returning to the circumstances of this case: there was some evidence before the Tribunal, although not a great deal, to the effect that the Sri Lankan armed services and police have a “culture of brutality” and that a significant number of police detainees experience mistreatment, sometimes amounting to torture.  It was submitted to the Tribunal that supporters of the LTTE are most at risk in this respect.  There was, in my view, adequate evidence to support this submission.

16. The terms in which the Tribunal found that the applicant in this case faced prosecution rather than persecution are very similar to those used by the Tribunal in Tharmalingam.  Mr Jordan conceded that, if the Tribunal’s decision had concluded at that point, namely at the end of the penultimate paragraph, an error of law would have occurred similar to that which occurred in Tharmalingam.  However he submitted that the matter was rectified when the Tribunal, in the final paragraph of its decision, found that any fear of persecution Mr Kamal might have by reason of his imputed political opinion was not well-founded, given the time which had elapsed since his departure from Sri Lanka and the apparent lack of interest shown by the authorities in his whereabouts.

17. It is possible that this is what the Tribunal was attempting to say in the final paragraph of its decision.  However it appears, on a fair reading of the decision, that the Tribunal was adverting in that paragraph to a different matter, namely to Mr Kamal’s detention after the bombing of the Kolonnawa refinery.  The Tribunal went on to note that the authorities had not appeared to be interested in Mr Kamal’s whereabouts as one would have expected if, as he claimed, he had been released with reporting conditions.

18. On its face, I do not see that this final paragraph of the Tribunal’s decision rectifies the deficiencies of the earlier parts of its decision.  It appears to me that each of the three paragraphs under the heading “Findings and Reasons”, were dealing with discrete issues.  In the first paragraph, the Tribunal raised and dismissed the possibility that Mr Kamal might fear persecution on the ground of his religion.  In the second paragraph it discussed the assistance Mr Kamal had given to LTTE members.  It accepted that this had taken place, but found it would attract only criminal sanctions, not persecution in the Convention sense.  It then proceeded, in the third paragraph, to discuss Mr Kamal’s detention following the Kolonnawa bombing.  In that context it found that his fear of persecution was not well founded.

19. In the result, I find it very difficult to construe the Tribunal’s finding that “the applicant’s fear of persecution for reason of his imputed political opinion, or for any other Convention reason, is not well-founded” as somehow relating back to a fear of persecution which the Tribunal had never mentioned in any of its earlier findings.

20. It follows from all I have said that, in my view, the Tribunal in this case made the same error as that displayed in Tharmalingam. It failed to deal with a central issue raised on the material before it, namely whether Mr Kamal had a well-founded fear of persecution by reason of his imputed political opinion, as a result of the assistance he had rendered to the LTTE during his years in Colombo. It matters not in this respect whether Mr Kamal’s assistance to the LTTE made him liable to criminal charges. Mr Kamal’s fear, as communicated to the Tribunal, was that if his identity as “Colombo Nana”, or otherwise as a helper of the LTTE, became known to the authorities, he would thereby suffer persecution. The Tribunal’s failure to deal with this issue constituted an error of law under s 476(1)(e) of the Act.

21. It was suggested by Mr Jordan that, notwithstanding this finding, I should exercise the discretion which exists under s 481 of the Act and affirm the Tribunal’s decision. In my view this is not an appropriate case for adopting such an unusual course. Accordingly, the orders I make are as follows:

    1That the decision of the Refugee Review Tribunal dated 16 February 2000 be set aside and the matter be remitted to the Tribunal, differently constituted, for determination in accordance with law.

    2That the respondent pay the applicant’s costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mathews.

Associate:

Dated:             9 May 2000

Counsel for the Applicant:	B Zipser
Solicitor for the Applicant:	Jamnadas & Associates
Counsel for the Respondent:	D Jordan
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	3 May 2000
Date of Judgment:	9 May 2000