Kanapathipillai v Minister for Immigration and Multicultural Affairs
[2001] FCA 1220
•31 AUGUST 2001
FEDERAL COURT OF AUSTRALIA
Kanapathipillai v Minister for Immigration & Multicultural Affairs [2001] FCA 1220
JEGATHEESWARAN KANAPATHIPILLAI v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
V98 of 2000
RYAN J
31 AUGUST 2001
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V98 of 2000
On remittal from the High Court of Australia
BETWEEN:
JEGATHEESWARAN KANAPATHIPILLAI
ApplicantAND:
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RespondentJUDGE:
RYAN J
DATE OF ORDER:
31 AUGUST 2001
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.THAT insofar as the applicant relies for the issue of a writ of mandamus, prohibition or certiorari or an injunction on the grounds referred to in paragraph 2 of the Order of the High Court of Australia made by Hayne J on 23 November 1999, the application be dismissed.
2.THAT the applicant pay the respondent’s costs of the proceedings in this Court, such costs to be taxed in default of agreement.
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
V98 of 2000
On remittal from the High Court of Australia
BETWEEN:
JEGATHEESWARAN KANAPATHIPILLAI
ApplicantAND:
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RespondentJUDGE:
RYAN J
DATE:
31 AUGUST 2001
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
The applicant entered Australia on 6 March 1996 travelling on a Sri Lankan passport containing a three month Australian visitor visa issued in Riyadh on 21 January 1996. He is a Sri Lankan citizen of Tamil ethnicity and is married to an ethnic Sinhalese national of Sri Lanka.
An application for a protection visa was lodged by the applicant with the Department of Immigration and Ethnic Affairs (“the Department”) on 15 April 1996. A written statement and further supporting documents were subsequently submitted by the applicant in May 1996.
On 23 August 1996 a delegate of the respondent Minister (“the Minister”) refused the applicant a protection visa and determined that he was not a person to whom Australia had protection obligations under the Convention relating to the Status of Refugees (“the Convention”). The applicant applied for review of the delegate’s decision to the Refugee Review Tribunal (“the Tribunal”) on 13 September 1996 and submitted a statutory declaration in support of that application on 16 December 1996. The Tribunal heard the application on 18 February 1997 and, after the hearing, accepted a written submission made by the applicant on 28 February 1997. The decision of the delegate not to grant a protection visa to the applicant was affirmed by the Tribunal on 2 April 1997.
The applicant filed an application in the High Court for prerogative relief on 28 February 1997. On 23 November 1999 and in accordance with the provisions of Pt 8 of the Migration Act1958 (“the Act”), Hayne J ordered that:
1.The Second Respondent DO SHOW CAUSE WHY A WRIT OF MANDAMUS, PROHIBITION OR CERTIORARI OR AN INJUNCTION should not be issued out of this Court directed to the Second Respondent in respect of the decision made by the Second Respondent on the 2nd day of April 1997 in the said matter upon the grounds that:-
(a)the Second Respondent failed properly to exercise his jurisdiction in that the rules of natural justice or procedural fairness were breached, or alternatively failed to take relevant considerations into account, in that in making the decision the Second Respondent failed to make all due and proper inquiries as to the truth of the claims of the Prosecutor and in particular, failed to utilise mechanisms available within the Tribunal, whereby the Prosecutor’s claims as to the current situation in Sri Lanka and the impact of that situation upon him could have been readily assessed.
(b)the Second Respondent misconstrued the test of a “real chance” of persecution in that his decisions were predicated primarily upon the approach and the assessment adopted as to the credibility of the Prosecutor.
(c)the Second Respondent, in all the circumstances of the Prosecutor’s case adopted an unduly narrow construction of the relevant convention reasons (race and political opinion) by finding that the Applicant was not at risk of being persecuted merely because the Prosecutor is Tamil.
2.There be remitted to the Federal Court of Australia that part of the matter pending in this Court in which the applicant seeks a writ of mandamus, prohibition or certiorari or an injunction against an officer of the Commonwealth on the grounds that:-
(a)the Refugee Review Tribunal (“the Tribunal”) failed to observe the procedures that were required by the Migration Act 1958 (Cth) (“the Act”) or the regulations under the Act to be observed by the Tribunal in connection with the making of the decision challenged in these proceedings;
(b)the Tribunal did not have jurisdiction to make the decision it did;
(c)the Tribunal’s decision was not authorised by the Act or the regulations under the Act;
(d)the Tribunal’s decision involved an error of law, being an error involving an incorrect application of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision.
In consequence of the remitter by par 2 of Hayne J’s order, the applicant, on 11 July 2000, filed particulars in this Court of the grounds relevant to the relief available here.
Background and Evidence
The following summary of the applicant’s claims was set out at p 5 of the reasons for decision of the Tribunal;
He was born in the Eastern province and in August 1983 he joined the political arm of the Eelam People’s Revolutionary Liberation Front (EPRLF), remaining a member until 1992. He attended meetings and distributed pamphlets in his home town.
In 1984 and 1985 he studied for and obtained a Diploma in Animal Husbandry in Colombo. On graduating he was appointed as an extension officer for a semi-government company in the Batticaloa and Amparai districts.
In April 1985 his village of Karaitivu, which was close to Batticaloa, was attacked by the Special Task Force and Muslim thugs. More than 500 houses including his were broken and destroyed. His village was attacked again by government forces in June 1990 during a confrontation between the government forces and the Liberation Tigers of Tamil Eelam (LTTE) and his house was again destroyed. The LTTE had been going after EPRLF members and came to his house several times in search of him. His life was constantly in danger because he had to spend more than 20 days a month in Batticaloa and Amparai with his job. He stopped visiting these areas and began sending false reports.
In 1987 while in Amparai with his work, he called on the EPRLF office at a time when the EPRLF were interrogating five LTTE members.
In April 1992 the LTTE apprehended him at his parents’ home and took him to their camp in Kokkaddicholai for questioning. He learned that four of the LTTE members who had been interrogated in 1987 had been killed with one escaping and the LTTE were seeking reprisals. Two of the interrogators had been killed and because he had been present at the interrogation he was also targeted. During the confusion caused by an air raid he escaped.
When he got to Colombo he received a letter from his employers telling him that since he had not been in touch he was dismissed and demanding the return of the motorcycle he used in his work. The LTTE went to his parents’ home looking for him and took the motorcycle. His superiors believed that he had given the motorcycle to the LTTE and informed the police. Fearing that the police would think he was an LTTE sympathiser and also fearing that the LTTE would locate him in Colombo to kill him (they had visited his home and questioned his wife as to his whereabouts) he went to Badulla and stayed at a remote farm where he obtained a job and accommodation from August 1992 until November 1994.
His wife used to visit him in Badulla as did EPRLF members who wanted him to join them as a permanent member. He refused and fearing that the EPRLF would tell the police he was an LTTE member as a reprisal and that the LTTE would kill him he went to Saudi Arabia to work in November 1994, remaining there until January 1996. He obtained a visa for Australia while in Saudi Arabia and returned to Sri Lanka before leaving for Australia in March 1996.
While in Sri Lanka some EPRLF members went to his home with the Sri Lankan Army while engaged in house to house searching. They told him to go to their Colombo office. He told them he would do so within two or three days but did not do so. He hid with relatives for two weeks then left.
The details of the applicant’s alleged abduction and detention by the LTTE in April 1992 are of particular relevance as background to the grounds remitted to this Court. The applicant made a written statement dated 29 May 1996, which was forwarded by his migration agent by letter dated 29 April 1996, in support of, and to be read in conjunction with, his application for a protection visa. On p 3 of that statement, in relation to his arrest and detention by the LTTE, he stated;
9.…on the 2nd April 1992, four LTTE members came to my home and threatened me showing their guns and took me with them forcefully.
10.The LTTE members who abducted me changed the places in nights to several villages and finally kept me in their camp in a village named Kokkaddicholai. I was persecuted there very much by them. I was severely tortured.
Consistently with that statement, the applicant had answered the question at p 11 of his pro forma visa application, “What do you fear may happen to you if you go back to that country?” by stating;
I will be arrested and tortured. I may be killed.
The delegate of the Minister, in his decision record at par 5.1.3, acknowledged the applicant’s claim to have been tortured by the LTTE, by saying;
The applicant claims that in April 1992, LTTE members apprehended him at his parents’ home and took him to their camp for questioning, where he claims he was also tortured.
The delegate did not specifically address those claims in his reasons or findings of fact. At par 5.3.2 he made general findings that it was implausible that the applicant was wanted by the LTTE and that the applicant’s account of detention by the LTTE lacked credibility, because he had been able to escape from Sri Lanka.
In support of his application for review by the Tribunal, the applicant filed a statutory declaration which referred to the specific adverse findings which had been made by the delegate. Understandably that statutory declaration did not address the specific claim of torture as this had not been directly questioned by the delegate, and the delegate’s finding that the applicant’s account lacked credibility had not been directed to that part of his claim.
Similarly, the submission provided on behalf of the applicant by Victoria Legal Aid to the Tribunal after its hearing, referred, under the heading “Clarification of Evidence” only to “various concerns” which had been raised by the Tribunal about the evidence provided by the applicant at the hearing. The first page of the written submission at 1(a) under the heading “Detention by the LTTE” addressed only the specific doubts about the occurrence of the detention which had been raised by the Tribunal in questioning the applicant.
Even so, Legal Aid’s submission made numerous references to the claim of detention and torture which had been made by the applicant. At 1(b) on p 2, the submission recited;
… My instructions are that the applicant’s detention by the LTTE was a traumatic experience. He was detained for 6 weeks during which time he was confronted daily with the constant threat of certain death. He believed he would die…
At 2(a) on p 5, it was submitted;
The applicant fears that he will be targeted by the LTTE if he returns to Sri Lanka. His fear is based on the fact that he knows the LTTE associate him with the death of one of their members. He has been detained for a substantial period of time by the LTTE for this reason and the LTTE had every intention of killing him. There is ample evidence to indicate that the LTTE do not hesitate to abduct, or even kill Tamil persons who they regard as their opponents.
The final relevant part of the Legal Aid submission requested the Tribunal to consider the impact of past persecution of the applicant, in the form of his detention and “inhumane treatment” on the application of the “real chance” test of whether he had a well-founded fear of persecution for a Convention reason in the future. At par 4 on p 13 of the submission it was contended;
In my submission there is no doubt that the applicant has previously been subjected to treatment amounting to persecution for a Convention related reason. In 1992 he was for six weeks by the LTTE subjected to inhumane treatment. The refugee determination process is geared towards a prospective assessment of the risks a person would face if returned to their country of origin. It is recognised that previous experiences and the impact that they have upon the individual remain highly relevant to any assessment of the future risks an applicant faces. The applicant’s testimony of his previous treatment provides a realistic indication of the kind of mistreatment he could be subjected to if returned to Sri Lanka. Authority for this proposition can be found in Chan Yee Kin v DIEA (169 CLR, Dawson J at 398) and Professor Hathaway. He states:
“where evidence of past maltreatment exists, however, it is unquestionably an excellent indicator of the fate that may await an applicant upon return to her home. Unless there has been a major change in circumstances within that country that makes the prospective persecution unlikely, past experience under a particular regime should be considered probative of future risk”
Likewise the Handbook states at Paragraph 45 that:
“it may be assumed that a person has a well-founded fear of being persecuted if he has already been the victim of persecution for one of the reasons enumerated in the 1951 Convention.
When it came to consider these submissions and the evidence, the Tribunal noted, at p 12 of its reasons;
Notwithstanding my many reservations about the applicant’s claims, it is well documented that the LTTE regard the EPRLF as their enemy and that they have killed many EPRLF members; and while I am not convinced of many of the details submitted as to where he was kept, how he escaped and why it took him so long to reach Colombo, I will extend the benefit of the doubt to the applicant and accept that he was kidnapped by the LTTE and somehow escaped. However, as stated, I do not accept that the reason was that five years earlier he just happened to walk into a room when LTTE captives, four of whom were later killed happened to be. As stated, it does not make sense that it took the LTTE five years to do or that they would have any interest in the applicant since the escaped LTTE member would be well aware that he had no connection whatsoever with the capture and killing of his four colleagues. In his original submission the applicant stated that the LTTE had been going after EPRLF members and came to his house several times in search of him and I accept that it was in this context that they finally found him and abducted him.
However, even accepting that the applicant was kidnapped by the LTTE and managed to escape, the question the Tribunal must consider is whether there is a real chance that he will be persecuted by the LTTE if he returns to Sri Lanka.
Thus, despite its misgivings about the details of that part of the applicant’s claim, the Tribunal found as a fact that he had been abducted and detained by the LTTE. The reasons of the Tribunal include no findings as to whether or not the applicant had, as he claimed, been tortured during the period of detention which it found to have occurred.
The Tribunal went on to make findings about the difficulties faced by Tamils in Sri Lanka, and more particularly Colombo, and whether the applicant would be at risk from the LTTE or the EPRLF in Colombo. Although some of its reasoning in this respect seems circular, it is clear that the Tribunal concluded that the chance that the applicant would be persecuted by the LTTE or EPRLF if returned to Colombo was unlikely, implausible or not supported by the evidence. It did concede however, that country information indicated that the political and social climate in Sri Lanka had not changed since his departure from that country in a way relevant to what the applicant claimed put him at risk of persecution. At p 17 of its reasons the Tribunal said;
The applicant’s adviser submits that the applicant was subjected to persecutory treatment by the LTTE and that the escalation of the various conflicts in Sri Lanka demonstrates that a substantial change has not occurred in Sri Lanka. I accept that this is so; however, I have found that there is not a real chance of the applicant’s being persecuted by the LTTE in Colombo where he has made his home.
Grounds for Review
Mr Krohn of Counsel for the applicant has addressed in order the four grounds for review of the Tribunal’s decision which have been remitted to this Court. The first three of those grounds may be dealt with together as they overlap to some extent. Those, it will be recalled, were;
(i)That procedures that were required by the Act to be observed in connection with the making of the decision were not observed in that the Tribunal failed to set out its findings on material questions of fact or to refer to evidence upon which those findings were based;
(ii)That the Tribunal did not have the jurisdiction to make the decision it did;
(iii)That the Tribunal’s decision was not authorised by the Act or the regulations under the Act.
The particulars of those grounds in the application filed in this Court, identify the following material questions of fact in respect of which the Tribunal was said to have failed to set out its findings or to refer to evidence on which those findings were based:
(a)whether the applicant was tortured by the LTTE during detention in 1992 and thereby suffered persecution for a Convention ground;
(b)whether having once been detained and tortured by the LTTE for a political opinion in 1992 would mean that the applicant has a well-founded fear of further persecution by the LTTE because of this established profile;
(c)whether having been detained by the LTTE and having refused to rejoin the EPRLF would mean that the applicant has a well-founded fear of persecution by the EPRLF because of this established profile;
(d)whether having been detained by the LTTE and having refused to rejoin the EPRLF would mean that the applicant has a well-founded fear of persecution by the security forces if detained as a Tamil because of this established profile;
(e)the finding of the Tribunal that “the evidence just does not support a claim that he would be at risk from the LTTE in Colombo”
Were I still bound by the judgment of a five member Full Court of this Court in Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469, some of those omissions, if made out, might have afforded the applicant a ground of relief. However, since the reasons for judgment in Singh were published, the High Court has made it clear in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 that the Tribunal is not obliged by s 430 of the Act to make and set out findings on all matters of fact that are objectively material to the decision it is required to make. As McHugh, Gummow and Hayne JJ observed in their joint judgment, at 17, [68];
Section 430 does not expressly impose such an obligation. In its terms, it requires no more than that the Tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the Tribunal to make, and then set out, some findings additional to those which it actually made. In Singh, significance was attached to the use of the word "material" in s 430(1)(c). It was said [Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 at 481 [47]-[48]] that "material" in the expression "material questions of fact" must mean "objectively material". Even if that were right, it would by no means follow that the Tribunal was bound to set out findings that it did not make. But it is not right to read "material" as providing an objective or external standard of materiality. A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision‑maker. All that s 430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision. (original emphasis)
That reasoning, I consider, precludes reliance on ground (i) of the grounds for review urged on behalf of the applicant. Jurisdictional error was also considered by the High Court in Yusuf and the relevant passage from the joint judgment of McHugh, Gummow and Hayne JJ is quoted at [25] below. In relation to jurisdictional error, their Honours cited Craig v South Australia (1995) 184 CLR 163 where, in the joint judgment of the whole Court, it was observed, at 179;
If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
For reasons which are explained below, I am not persuaded that the Tribunal in the present case identified a wrong issue or asked itself a wrong question. Nor can it be suggested that it ignored relevant material or relied on irrelevant material. The applicant’s complaint essentially is that the Tribunal failed to give sufficient weight to his detention by the LTTE which, “giving him the benefit of the doubt”, it found had occurred. That error, if it was an error, was not one of law and was made in the exercise of the jurisdiction conferred on the Tribunal by the Act. Accordingly, grounds (b) and (c) of those advanced on behalf of the applicant cannot be sustained.
It was fourthly submitted on behalf of the applicant that, in reaching its decision, the Tribunal made an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal. The applicant contended that the error was constituted by the failure of the Tribunal to address the questions set out at [20] above and by additional matters which were particularised as follows in the particulars of this fourth ground furnished to this Court;
(a)The Tribunal failed to properly or at all to determine the substantive issues raised by the material and evidence before it in relation to the matters set out in the particulars to Ground 1 herein (see [20]);
(b)The Tribunal erred in interpreting or applying s430 of the Act in relation to the matters set out in the particulars to Ground 1 herein;
(c)The Tribunal erred in law in not considering that “frequent ID checking, round-up, temporary detention and house searching” or repeated detention of Tamils for Questioning would be persecution for reasons of race within the meaning of the Convention;
(d)The Tribunal erred in law in assessing the applicant’s chance of persecution in Colombo as his home region rather than the Eastern Province;
(e)The Tribunal erred in law in considering that it was reasonable for the applicant to return to Colombo;
(f)The Tribunal erred in law in failing to consider whether the applicant had well-founded fear of persecution because the Tribunal may have been in error in rejecting the applicant’s claim to have been detained, interrogated and tortured by the LTTE by reason of his suspected involvement in questioning LTTE members who were later killed.
The matters raised by pars (a) and (b) of those particulars have been considered in relation to the first ground discussed above and, for the reasons there explained, cannot avail the applicant. Although, as there indicated, it is no longer the law that the Tribunal is obliged to set out its findings on material questions of fact, McHugh, Gummow and Hayne JJ in Yusuf went on, immediately after the passage quoted at [21] above, to say, at 17, [69];
It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. [Repatriation Commission v O'Brien (1985) 155 CLR 422 at 446; 58 ALR 119 at 136 per Brennan J; Sullivan v Department of Transport (1978) 20 ALR 323 at 348-349; 1 ALD 383 at 408-9 per Deane J, ALR 353; ALD 413 per Fisher J; cf Fleming v R (1998) 197 CLR 250 at 262-263 [28]-[29]; 158 ALR 379 at 388.] This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this Court in proceedings brought under s 75(v) of the Constitution. For example, it may reveal that the Tribunal made some error of law of the kind mentioned in s 476(1)(e) of the Act, such as incorrectly applying the law to the facts found by the Tribunal. It may reveal jurisdictional error. [Craig v South Australia (1995) 184 CLR 163 at 179; 131 ALR 595 at 602.] The Tribunal's identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration. [Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; 66 ALR 299.]
Drawing the inference, which their Honours there said this Court is entitled to draw, from the Tribunal’s failure to advert to whether the applicant had been tortured as he claimed, that matter was not considered by the Tribunal to be material to what it had to decide. That imputed state of mind of the Tribunal gives rise to a real question as to whether it did not make one of the errors of law on which s 476(1)(e) is predicated, namely an incorrect interpretation of the applicable law.
The ultimate question which the Tribunal had to resolve was whether the applicant had a well-founded fear of persecution for a Convention reason. The primary reason which the applicant chose to assign for what he claimed was his well-founded fear of persecution seems, at least by implication, to have been his actual or imputed political opinions as a Tamil affiliated to the EPRLF. Moreover, the Tribunal seems to have accepted that it was by reason of those opinions that the applicant was captured and detained by the LTTE. However, it declined to find that the capture and detention in 1992 had been prompted by his fortuitous presence in an EPRLF office in 1987 when five LTTE members were being interrogated.
Given its acceptance that the applicant had been captured and detained by the LTTE, and that such capture and detention was capable of amounting to persecution within the meaning of the convention, it was logically unnecessary for the Tribunal to consider whether the applicant had been tortured. Despite the prominence given, both before the delegate and before the Tribunal, to the claim of torture, the remaining question for the Tribunal was whether the acknowledged past acts of persecution of the applicant gave rise to a real chance of future persecution were he to return to Colombo. Whether the past persecution had been intensified by torture did not bear on that question. Accordingly, the Tribunal’s failure to mention torture did not signify that it had asked itself a wrong question or had failed to take into account a relevant consideration.
The passage in the Tribunal’s reasons which gave rise to par (c) of this fourth ground was as follows;
I accept that the applicant may experience some difficulties as a Tamil in Colombo. The war between the LTTE and the government forces has, understandably, affected relations between the 350,000 strong Tamil population of Colombo (The Sri Lanka Monitor of December 1995) and the majority Sinhalese community, and has affected the way Tamils are viewed by the security forces.
Various reports have been put out by various organisations about the situation in Tamils in Colombo and, as might be expected, they differ in their assessment of the situation. A recent report from the Australian High Commission in Colombo was much more positive in its assessment of the situation than many previous reports. Like most reports it stated that the profile of persons who would fall under security force scrutiny were young Tamils from the north who, if they could not explain their presence in Colombo, would be taken in for questioning. The report adds that in an estimated 90 per cent of cases people are released within a couple of days. The report also states that while Tamils in Colombo may be more affected by the security measures designed to counter the LTTE security threat, this does not amount to officially-sanctioned discrimination or harassment of Tamil people as a group' (DFAT cable CL38234 of 15 December 1995).
A UNHCR report states, in similar terms that Tamils, by reason of their ethnic origin alone, reportedly do not face any serious problems in Colombo, although many Tamils perceive the frequent ID checking, round-up, temporary detention and house searching as discriminatory harassment. The report adds that with the exception of a small number of cases in which further investigations have been introduced most people are released within 24 hours (UNHCR Geneva, 4 January 1996 Current Guidelines on Sri Lankan Asylum-Seekers).
That passage, it was argued for the applicant, failed to acknowledge that “frequent ID checking, round-up temporary detention and house searching” if carried out intensively enough and with sufficient concentration on a particular victim could amount to persecution within the meaning of the Convention. However, I consider that when the Tribunal’s reasons on this point are read in the way ordained by the High Court in Minister for Immigration and Ethnic Affairs v WuShan Liang (1996) 185 CLR 259, at 271-272, they convey that the Tribunal recognised that, in exceptional cases, the matters to which it adverted, like frequent ID checking, temporary detention and house searching, could amount to persecution in the requisite sense. Thus, the Tribunal said, at p 15 of its decision;
There are obviously exceptions to the general rule that Tamils per se are not persecuted in Colombo; however, these exceptions do not seem to be numerous enough to displace the general rule and do not indicate that they are part of a pattern of systematic abuse of the rights of Tamils such that one could conclude that a Tamil as such would face a real chance of persecution.
It then went on to consider whether there was a “real chance” of the applicant’s falling into the “exceptional” category of victims of intensive ID checking, temporary detention and house searching, saying, at p 17, in a passage, part of which has already been reproduced at [18] above;
The applicant's adviser submits that the applicant was subjected to persecutory treatment by the LTTE and that the escalation of the various conflicts in Sri Lanka demonstrates that a substantial change has not occurred in Sri Lanka. I accept that this is so; however, I have found that there is not a real chance of the applicant's being persecuted by the LTTE in Colombo where he has made his home. I have also found that there is not a real chance of his being persecuted by the security forces and the EPRLF. Having regard to all the evidence I am satisfied that even when his claims are considered cumulatively there is not a real chance of his being persecuted.
In my view that approach does not evince an error of law as to what may amount to persecution as to which McHugh J said, in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, at 429-430;
The notion of persecution involves selective harassment. It is not necessary, however, that the conduct complained of should be directed against a person as an individual. He or she may be “persecuted” because he or she is a member of a group which is the subject of systematic harassment ....... Nor is it a necessary element of “persecution” that the individual should be the victim of a series of acts. A single act of oppression may suffice. As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is “being persecuted” for the purposes of the Convention. The threat need not be the product of any policy of the government of the person’s country of nationality. It may be enough, depending on the circumstances, that the government has failed or is unable to protect the person in question from persecution ....... Moreover, to constitute “persecution” the harm threatened need not be that of loss of life or liberty. Other forms of harm short of interference with life or liberty may constitute “persecution” for the purposes of the Convention and Protocol. Measures “in disregard” of human dignity may, in appropriate cases, constitute persecution.
See also Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, at 258.
The issue raised by par (d) of the applicant’s fourth ground arose from this passage at p 14 of the Tribunal’s reasons:
The applicant's adviser submits that the applicant's situation should be assessed against the Eastern province and consideration should be given to whether he could relocate to Colombo. I have some difficulty with this. While the applicant spent most of his life in the Eastern province, he lived in Colombo for two years in the 1980's, he was employed by a company based in Colombo from 1985 until 1992 and visited there regularly in the course of his work, and he established his home in Colombo after marrying in 1990 . Further, his wife still lives there with their son. While I accept that the applicant experienced his difficulties in the Eastern province rather than in Colombo, the notion of his relocating to Colombo is somewhat meaningless since his home is in Colombo: if he decided it is too dangerous for him in the Eastern province (and I accept that as a former EPRLF member that this could be the case in an area where the LTTE has a considerable presence) he would merely be going home to Colombo, not relocating to another part of Sri Lanka.
It was said on behalf of the applicant that there was nothing in the evidence which established that Colombo, rather than the eastern province of Sri Lanka, was the applicant’s home or domicile at any time since 1992 at the latest. However, Counsel for the applicant acknowledged that, if that point be accepted “then the test is whether it would be reasonable in all the circumstances for him to relocate to Colombo”. It may be that, by concentrating on whether the applicant faced a real risk or chance of persecution in the event of his return to Colombo, the Tribunal elided the two questions of risk of persecution in the applicant’s home region and the chance of similar persecution in another part of Sri Lanka to which he could reasonably locate. However, if it can be inferred that the Tribunal found as a matter of fact that it was reasonable for the applicant to relocate to Colombo, that elision would not amount to an error of law. I draw the requisite inference from the last sentence of the extract from the Tribunal’s reasons quoted at [33] above. It therefore follows that there was no error of law in the Tribunal’s concentration on Colombo in assessing whether the applicant would face a real chance of persecution if he were returned to Sri Lanka. That conclusion renders unavailable to the applicant the alleged error of law instanced in par (e) as well as par (d) of his particulars of the fourth ground remitted to this Court and set out at [24] above.
Paragraph (f) of the particulars of the fourth ground advanced on behalf of the applicant essentially restates in different words the contention that the Tribunal erred, in the circumstances in not asking itself “What if I am wrong?” The conditions for the application of that test have been analysed by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559. The applicant has been prompted to invoke it in the present case because of repeated reference by the Tribunal in its reasons to “reservations” or “doubts” which it had about various aspects of the case.
By way of preface to its discussion of “the Applicant’s situation”, the Tribunal said;
There are a number of aspects of the applicant’s evidence about which I have considerable reservation.
To similar effect, the Tribunal dealt in these terms with the applicant’s claim to have been captured and detained by the LTTE;
Having regard to the foregoing, I do not believe that the LTTE captured the applicant in 1992 and planned to kill him because he happened to visit the EPRLF office at a time when some LTTE members were being questioned. I also have some reservation about whether the applicant was in fact captured at all by the LTTE and taken to a camp, and this is added to by the fact that in his comprehensive statement submitted with his original application the applicant stated that the LTTE members who abducted him changed the places in nights to several villages and finally kept [him in Kokkaddicholai], which I understand to mean that they stayed overnight in several villages before finally going to Kokkaddicholai camp; while, at the hearing he said that after he was abducted they travelled half an hour by bicycle and then five hours by car to the camp.
The passage containing a reference to the Tribunal’s “many reservations about the applicant’s claims” and its decision to extend to him “the benefit of the doubt has been reproduced at [16] above. The Tribunal also stated in another passage, quoted at [33] of these reasons, that it had “some difficulty” with the applicant’s claim to be assessed primarily as a refugee from the eastern province of Sri Lanka. The final reference to the Tribunal’s reservations was in this passage at p 26 of its reasons;
I have reservations about the applicant's claim that he left Colombo in August 1992 to stay on a farm in Badulla because a friend told him he was under threat living in Colombo. The applicant went straight to a job in Badulla and it is likely in my view that this is why he went there and that he went from there to the Middle East because he had secured a well-paid job there. In any event, the evidence just does not support a claim that he would be at risk from the LTTE in Colombo.
It will be seen that the Tribunal’s relevant doubts and reservations were as to aspects of the applicant’s evidence and it resolved each of them in the applicant’s favour by assuming the truth of that part of his evidence and finding that he had been subjected to persecutory treatment by the LTTE. However, its conclusions expressed in the passage quoted at [31] above are not qualified by any expression of doubt or reservation. In the joint judgment of the High Court in Guo (supra) it was observed, at 575-576;
For the reasons that we have given, the Tribunal was entitled to weigh the material before it and make findings before it engaged "in any consideration of whether or not Mr Guo's fear of persecution on a Convention ground was well-founded." Moreover, given the strength of some of the Tribunal's findings - for example, "the treatment the Applicant received on return to the PRC in October 1992 [is] reflective of punishment for illegal departure and not because of his political activities, application for refugee status or contact with Australian officials", "the Applicant's illegal departure in 1993 will not result in an imputed political profile", "these matters will not result in persecution to the Applicant for Convention reasons if returned to China" - the Tribunal was not bound to consider the possibility that its findings were inaccurate or that the punishment was Convention based.
It is true that, in determining whether there is a real chance that an event will occur or will occur for a particular reason, the degree of probability that similar events have or have not occurred or have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future. If, for example, a Tribunal finds that it is only slightly more probable than not that an applicant has not been punished for a Convention reason, it must take into account the chance that the applicant was so punished when determining whether there is a well-founded fear of future persecution.
In the present case, however, the Tribunal appears to have had no real doubt that its findings both as to the past and the future were correct. That is, the Tribunal appears to have taken the view that the probability of error in its findings was insignificant. Once the Tribunal reached that conclusion, a finding that nevertheless Mr Guo had a well-founded fear of persecution for a Convention reason would have been irrational. Given its apparent confidence in its conclusions, the Tribunal was not then bound to consider whether its findings might be wrong.
That passage has been applied by Sackville J as a member of a Full Court of this Court in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220, where his Honour said, at 238;
It can be seen from this passage that if the RRT finds that it is only slightly more probable than not that an alleged relevant event has not occurred, it must take into account the chance that it did occur when determining whether there was a well-founded fear of persecution. It is clear that the comment in the joint judgment is not confined to a past event (as in Wu Shan Liang) involving persons other than the applicant. Their Honours give as an example a finding that it was slightly more probable than not that the applicant had not been punished for a Convention reason.
If, on the other hand, it appears that the RRT had no “real doubt” that its findings were correct, it is not bound to consider whether those findings might be wrong. (original emphasis)
In the present case, as already indicated, all of the Tribunal’s relevant doubts and reservations were about the applicant’s account of past persecution. It appears, however, that it had no real doubt about its conclusion that there was not a real chance that the applicant would be persecuted in the future if he were returned to Colombo. Accordingly, the Tribunal was not bound to consider whether that finding might be wrong.
Conclusion
For the reasons which I have endeavoured to explain, the applicant has failed to establish that the Tribunal’s decision was infected by any of the errors of law particularised under the fourth of the grounds remitted to this Court. Since I have also rejected each of grounds (a), (b) and (c), I would refuse the application for prerogative relief or an injunction against the Minister insofar as it is based on any of the grounds remitted to this Court. The applicant must pay the respondent’s costs of the proceedings in this Court.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan. Associate:
Dated: 31 August 2001
Counsel for the Applicant: Mr A Krohn Solicitor for the Applicant: Ravi James & Associates Counsel for the Respondent: Mr W Mosley Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 25 July 2000 Date of Judgment: 31 August 2001
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