Kanaheraarachchige v Minister for Immigration and Multicultural Affairs

[2001] FCA 924

FEDERAL COURT OF AUSTRALIA

Kanaheraarachchige v Minister for Immigration & Multicultural Affairs
[2001] FCA 924

MIGRATION – protection visa – application for review of decision of Refugee Review Tribunal – alleged threats by LTTE to applicant – applicant’s account including allegation that assailants put gun to her neck – no specific reference to this aspect by Tribunal – whether error of law

Migration Act 1958 (Cth) s 476(1)(e)

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 applied

DONA KANTHIRATNE KANAHERAARACHCHIGE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
V 882 OF 2000

HEEREY J
11 JULY 2001
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 882 OF 2000

BETWEEN:	DONA KANTHIRATNE KANAHERAARACHCHIGE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	HEEREY J
DATE OF ORDER:	11 JULY 2001
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        The applicant pay the respondent’s costs, including reserved costs.

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 882 OF 2000

BETWEEN:	DONA KANTHIRATNE KANAHERAARACHCHIGE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	HEEREY J
DATE:	11 JULY 2001
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicant seeks review under Part 8 of the Migration Act 1958 (Cth) (the Act) of a decision of the Refugee Review Tribunal made on 29 September 2000 affirming a decision of a delegate of the Minister not to grant her a protection visa.

2. The applicant is a Sinhalese Sri Lankan single woman aged 32 at the time of the Tribunal’s decision.  Her claim for refugee status was based on a claim that she was subjected to various hardships, including death threats by members of the Liberation Tigers of Tamil Eelam (LTTE).  Her brother had been a member of the Sri Lankan air force.  He reported some suspicious Tamils in a house near where they lived.  The Tamils were arrested and subsequently, according to the applicant, the LTTE harassed her with telephone calls and made threats to her.  In particular, there was an incident which, on her version, occurred shortly before she left Sri Lanka.  In her application for a protection visa she said this:

   “One Sunday at about 5 o'clock in the morning someone knocked the house and when I opened two youths forced into the house and showed a gun and warned me not to shout.  Thereafter, one person with the gun stayed with me and the other person went inside the house and searched the house.  I was terrified and did not know what to do.  As he could not find anything, one of them asked me as where my brother and his family.  I was struggling for words and I told them that they had gone to Galle and will be coming in one week.  Then one person put the gun to my neck and told me that they will come back in one weeks time and if my brother is not here, they will kill me.  They also warned me not to inform their visit to the authorities.  The [sic] took one of my brother's family photo and one of my photo which were kept on the showcase and went away.”

3. In its reasons the Tribunal dealt with that issue as follows:

   “The applicant claims that it was when Tamils entered her home early one morning and threatened that they would kill her if her brother was not there when they returned which led her to leave.  She said this happened just a week and a half before she left the country, something which I do not find credible given all that had to be done in that time to arrange for her departure.  It is puzzling why the Tamils would have taken this action when it must have been evident that the applicant's brother had long gone and when, in the preceding months since May 97 when he left, all they had done was telephone. 

   I note the applicant’s adviser’s submission that LTTE members have long memories but the articles he gave in support of this contention concerned the killing of a leader of rival group who had been involved in military operations against the LTTE.  The circumstances of that individual and of the applicant have, in my view, nothing in common.  More importantly, I do not accept that the applicant's home had been entered as she has claimed.  She could not have told the police about the LTTE’s interest in her and had her report treated seriously. 

   On the basis of everything before me - the recitation of the story, her unconvincing and confused responses to questions about what happened and when, and the plausibility of what she has claimed when considered against independent information - I am not satisfied that what she has claimed in connection with her brother’s reporting of Tamils who were arrested and the subsequent threats and harassment, is true.  I do not accept her story about her brother being in the air force and reporting the Tamils, about him resigning and leaving the area as she has said, or about the continuing interests of the LTTE in him or in the applicant.”

4. The reference to the “recitation of the story” is to be understood in the light of an earlier comment which the Tribunal made:

   “I record here my observation that the applicant appeared to me to be reciting her story at the hearing.  While it is entirely understandable that an applicant would seek to collect their thoughts before a hearing which will lead to a determination about whether they can remain in Australia, her responses to straightforward questions about when these things happened were generally muddled and unconvincing and have together led me to conclude that she was not a credible witness.”

5. In conclusion the Tribunal said:

   “Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.  Therefore the applicant does not satisfy the criterion set out in section 36(2) of the Act for a protection visa.” 

6. The amended application for review in ground 1 asserted a failure to observe procedures (s 476(1)(a)) in that the Tribunal failed to set out its findings on material questions of fact as required by s 430(1)(c)  In the light of the decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1, that ground has been abandoned. Ground 2 was:

   “The decision involved errors of law, being errors involving incorrect interpretation of the applicable law or incorrect application of the law to the facts as found (section 476(1)(e)).” 

7. The particulars of that ground, as supplemented by a subsequent letter and further in the course of argument before me, were as follows:

   “(i)the Tribunal misunderstood the well‑founded fear test and incorrectly applied it in relation to the applicant.

   (ii)the applicant refers to and repeats the particulars set out in ground 1 hereof.

   (iii)the applicant is a single woman and a member of her family and was a member of a particular social group.

   (iv)the reason for the Tribunal’s rejection of the applicant's evidence is contrary to section 476(1)(e), in that the rejection demonstrates an incorrect approach to the credibility issue.

   (v)error of law because the Tribunal failed to consider a material consideration, namely that the applicant was threatened by a person putting a gun to her neck.”

8. Particular (i) was not elaborated in the course of argument.  Insofar as it is not dealt with in the matters hereafter mentioned I do not see any basis for it.  Particular (ii) does not call for separate consideration.  As to particular (iii), on a fair reading of the applicant's application, her being a single woman and a member of her family were not advanced as a reason why she should fear persecution, nor was it suggested that a single woman and members of her family form a social group in Sri Lanka which attracted persecution simply because of membership of a group so defined. 

9. As to particular (iv), I can not see any defect in the approach the Tribunal took to the issue of credibility.  As the passage already quoted indicates, the Tribunal placed some importance on the way the applicant presented her evidence and the appearance of it as a prepared story rather than a genuine and spontaneous account of facts and events which actually occurred.  This is a very common approach in the process of fact finding.  I can discern no legal error. 

10. Particular (v) was the subject to which most argument was addressed.  It was said, in terms of the judgment of the majority in Yusuf v Minister for Immigration and Multicultural Affairs (2001) 180 ALR 1, that the Tribunal asked the wrong question and ignored relevant material (see [82] and [84]). The putting of the gun to the neck was said to be relevant material that was ignored. It was said that the Tribunal should have asked “relevant questions”, for example, “How did you feel when the gun was put to your neck?” This was said to be the “crux or key of her case”.

11. The short answer is that the Tribunal, without erring in law, came to the conclusion that the whole incident simply never happened.  The Tribunal certainly dealt with the alleged incident as one in which a threat to kill was made.  It was not necessary for the Tribunal, in reciting the applicant's allegations, to repeat every detail that had been contained in her statement.  There is no reason to conclude that the Tribunal did not have in mind the applicant's initial statement when it was considering whether or not this incident occurred at all.  In my opinion, no error of law has been showed in the way in which the Tribunal dealt with this issue. 

12. The application will be dismissed.  The applicant must pay the respondent’s costs, including reserved costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate:

Dated:             18 July 2001

Counsel for the Applicant:	S M Frederico
Solicitor for the Applicant:	Satchi & Co
Counsel for the Respondent:	G Gilbert
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	11 July 2001
Date of Judgment:	11 July 2001