Keppitipola, Herath Mudiyanselage Janaka Prebodha v Minister for Immigration and Multicultural Affairs

[1998] FCA 1416

FEDERAL COURT OF AUSTRALIA

MIGRATION – application for protection visa – Sri Lankan citizens – alleged suspect of train bombing – whether supporter of LTTE/Tamil Tigers – whether tribunal gave genuine and realistic consideration – whether tribunal obliged to apply “what if I am wrong?” test

Hindi v Minister for Immigration etc (1988) 20 FCR 1 at 13 mentioned
Chan Yee Kin v Minister for Immigration etc (1989) 169 CLR 379 applied
Minister for Immigration etcv Guo (1997) 144 ALR 567 applied
Minister for Immigration etc v Wu Shan Liang (1996) 185 CLR 259 applied

HERATH MUDIYANSELAGE JANAKA PREBODHA KEPPITIPOLA & ANOR

v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NO. VG 142 of 1998

HEEREY J
6 NOVEMBER 1998
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 142 of 1998

BETWEEN:

HERATH MUDIYANSELAGE JANAKA PREBODHA KEPPITIPOLA
FIRST APPLICANT

BULATH SINGHALAGE ROSHANI SWARNAMAL KEPPITIPOLA
SECOND APPLICANT

AND:

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

HEEREY J

DATE OF ORDER:

6 NOVEMBER 1998

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

The application is dismissed with 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	VG 142 of 1998

BETWEEN:

HERATH MUDIYANSELAGE JANAKA PREBODHA KEPPITIPOLA
FIRST APPLICANT

BULATH SINGHALAGE ROSHANI SWARNAMAL KEPPITIPOLA
SECOND APPLICANT

AND:

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:	HEEREY J
DATE:	6 NOVEMBER 1998
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

The first applicant is the husband of the second applicant.  They are both citizens of Sri Lanka.  The first applicant was born in 1971 and his wife a year later.  The second applicant’s case is entirely dependent on that of her husband and it will be convenient to refer to the first applicant simply as “the applicant”.

The applicant entered Australia on 24 September 1996 as the holder of a visitor’s visa valid for three months.  His wife had arrived some three weeks earlier. On 4 October 1996 the applicant and his wife lodged applications for protection visas.  The applications were refused and the refusals were affirmed by the Refugee Review Tribunal on 6 March 1998.  The applicant and his wife seek a review of that decision.

The applicant’s case

The applicant is a Sinhalese from Colombo.  In November 1995 he rented part of his parents’ house in Colombo to a couple who came from East Sri Lanka and were friends of a friend of the applicant from his school days.  The applicant’s friend was a Tamil, as also, it seems, were the tenants. 

On 31 January 1996 terrorists exploded a bomb at a bank in Colombo.  On 2 February the tenants were detained by the security forces in connection with this incident and detained for four days.  They then returned to the applicant’s house.  The applicant’s mother was taken to the police station and questioned because the tenants had not been registered with the police, as the law required.

Neighbours began to verbally harass or ostracise the applicant and his mother because they were suspected of supporting the separatist LTTE/Tamil Tigers, who were blamed for the bank bombing.  Also the applicant’s mother had been a candidate for the United National Party which had lost the 1994 election to the People’s Alliance, the party that was supported by the neighbours. 

On 24 July 1996 terrorists exploded two bombs in a packed commuter train in Dehiwela, the suburb of  Colombo where the applicant lived.  At least 62 people were killed and 450 injured.  The applicant and his tenants were arrested and detained.  The applicant claimed he was kept in detention for about a week, during which time he was interrogated, accused of being involved in the bombing, and beaten to the head and body by four men using batons over a period of 45 minutes.  He was charged with harbouring terrorists and released on bail after eight days on condition that he report every fortnight.  He did that until he left the country some six or seven weeks later. 

After the applicant arrived in Australia his parents’ house was attacked by the neighbours.  He has been informed that they were searching for him in connection with the train bombing.  The applicant fears he will be detained and tortured if he returns to Sri Lanka because he is wrongly suspected of involvement in the terrorist attack on the train and being a supporter of the LTTE.  His fears are, he says, exacerbated because he is known to be a UNP supporter. 

The Tribunal’s decision

The Tribunal sets out the legislative framework which prescribes the criteria for the grant of a protection visa and the Convention definition of a refugee, namely a person who

“owing to 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.”

The Tribunal then refers to the discussion of that definition by the High Court in Chan Yee Kin v Minister for Immigration etc (1989) 169 CLR 379 and Minister for Immigration etcv Guo (1997) 144 ALR 567 as well as a number of Federal Court cases.

Under the heading “Discussion and Findings” the Tribunal then observes that the ongoing war between the LTTE and the Sri Lankan Government has provided conditions where serious abuses of human rights are committed by all of the parties involved.  The Tribunal notes the applicant as saying that he was not harassed after the bank bombing.  He and his mother were required to attend to the registration of the tenants but “otherwise had no difficulties with the authorities”.

In reference to the applicant’s claim that his neighbours verbally abused him for harbouring suspected Tigers, the Tribunal asked why he did not evict the tenants.  The applicant said that they had paid a year in advance.  But there was no lease, and he could not remember their family name.  Subsequently he said that something had been written on a piece of paper and he gave a name which he thought may have been the family name.  His wife said she never knew the family name and only ever called them by their first names.  The Tribunal comments that it did not believe that the applicant would not know the names of tenants who were stated to be the friends of his best friend and were detained for four days in January and then returned to the premises.

In regard to the detention in July 1996 the Tribunal notes the applicant telling the Minister’s delegate that he had not been charged with any offence.  At the hearing before the Tribunal however the applicant stated that he was charged with harbouring a terrorist, but the only document he ever received was a reference to receipt of the money he paid for bail.  (That document was, as far as I can see, not produced to the Tribunal.)  The applicant said that he had a lawyer who arranged his release.  The Tribunal comments:

“It is not credible that he would not have known whether or not he was charged with any offence when he was interviewed by the delegate and the Tribunal finds that he has contrived alleged charges after the delegate refused the initial application.”

I note here that in a detailed statement by the applicant submitted by his solicitors on 3 November 1996 in support of his application he makes no mention of being charged with any offence, and indeed does not mention any beating or other ill-treatment while in alleged custody. 

Returning to the Tribunal’s reasons, it is said that information from bodies such as Amnesty International and the Department of Foreign Affairs and Trade refer to the round-up and arrest of many Tamils but makes no reference to Sinhalese being interrogated or charged after the train bombing.  The Tribunal states:

“The general information suggests that no Sinhalese were implicated in the Dehiwela bombing.  The information specific to the Applicant, seen in the context of those materials, leads to the conclusion that he was not harassed for involvement in that terrorist attack.”

The Tribunal then proceeds to discuss various items of evidence:

“The Applicant has letters from his employer, dated 2 August and 9 August 1996, supporting his application for leave to take a vacation in Australia.  He told the Tribunal that one of the reasons that he was a real suspect in the train bombing was that he had taken that day off from work and was accused of doing so deliberately to avoid being on the train, which he stated he usually caught.  His spouse said he also used his van to commute to work on some occasions.  It is not credible that his alleged interrogators would not at least make some enquiries to his work place during the course of his 8-day interrogation.  Nor is it credible that his employer would continue to support an application to go overseas if he was suspected of involvement in a bombing in which scores of people were killed and hundreds injured.  He told the Tribunal that he obtained leave for his absence by telling his employer, on his return to work, that he had been sick.  His spouse said she had no enquiries from the employer when he was absent during the first week of August.  When the Tribunal suggested that it would be likely that an employer would seek some information about an employee who was inexplicably absent for more than a week, the Applicant changed his story and said that his wife had called work when he was first detained and told his employer he was sick.  The Tribunal does not believe that account.  Nor is it believable that he would be released from detention by the security forces if, as he claimed, he was a prime suspect of involvement in the bombing.”

The Tribunal then comments on the lack of injuries after the alleged beating and failure to seek medical attention.  The Tribunal continues:

“Further, on his application form he indicated he was in hiding by using various addresses after his release.  On the other hand, his wife told the delegate she was living with him at their usual address until her departure for Australia.  When the Tribunal pointed that out, he stated that he would go home during the day but would stay at different places overnight because he feared he would be abducted.  If his aim was to evade the security forces, his claimed ‘hiding’ is at odds with his continued attendance at work and his fortnightly reports to the police station.”

The Tribunal notes that the applicant had no difficulty in leaving Sri Lanka.  The applicant claimed that he had not breached any of his reporting conditions and was not therefore on any security list that may be consulted by airport officials.  Recent reports to DFAT suggest that security at Colombo airport is lax and corruption is rife.  But the applicant made no claim that he had paid any bribes to leave or that he needed to take unusual measures.  He stated that he left through normal procedures, but was not wanted.  The Tribunal comments:

“Given the intensity of the investigation into the Dehiwela bombing, the Tribunal does not accept that the Applicant, as a self-claimed prime suspect of participation in the bombing and having been charged with a related offence, would have been permitted to leave the country.”

The Tribunal concludes:

“… that the Applicant has contrived his account of being suspected of involvement in the Dehiwela bombing.  It finds that he went to work as usual until his departure for Australia and that he was not charged, nor is he wanted in connection with that bombing.  The reason for his inability to identify his long-term tenants by their family name is not immediately apparent to the Tribunal, although it is apparent that he and his spouse had some undisclosed reason for holding back the name.  Nevertheless, it does not alter the conclusion that the Applicant is not suspected of involvement in the Dehiwela bombing incident and is not suspected of affiliation with or support of the LTTE.

The Tribunal accepted as being “plausible” that the applicant was verbally abused by neighbours for his support of the UNP and “it may be the case” that he had Tamil tenants and was abused for supporting the LTTE.  However the Tribunal notes that he “was not harassed by the authorities and encountered little difficulty for failing to complying with the laws in regard to residential registration”.  While verbal abuse may be “somewhat disconcerting” nothing further resulted from the political opinions he held and those imputed to him and he continued to rent the premises to the tenants, when he could have avoided the problem by reimbursing the money they had paid.  In any event the period of tenancy has long expired.

The Tribunal accepts that active members of the UNP had “encountered difficulty” from time to time.  But the applicant was not an active member of the party and, in any event, never encountered serious harm despite the fact that he often accompanied his mother when she was campaigning (she being a UNP candidate) even during the violence of the 1994 election.  The Tribunal concludes that the applicant’s fears of being seriously harmed on account of his support of the UNP were ill-founded, either for that reason alone or in combination with other reasons.  The Tribunal is not satisfied that the applicant had well-founded fears of being persecuted for reasons of his real or imputed political opinions or for any other Convention reason.  The same result follows for the applicant’s wife. 

I turn now to the arguments that were advanced on behalf of the applicant.

Genuine and realistic consideration

Counsel for the applicant said that the Tribunal did not give “genuine and realistic consideration” to the applicant’s claims.  He referred to Hindi v Minister for Immigration etc (1988) 20 FCR 1 at 13. It was said that the Tribunal dismissed in a “cursory manner” the evidence of the applicant that he was perceived as having associations with the LTTE. The Tribunal did not “thoroughly investigate the applicant’s claims including an investigation of (his) background and personality”. It did not reasonably consider or investigate the reasons why the applicant did not disclose the names of the tenants, nor did it investigate the applicant’s claims that he was arrested and detained in relation to the Dehiwela train bombing. The Tribunal failed to give the applicant the “benefit of the doubt”.

Insofar as “cursory” means, as counsel suggested, “short”, I do not think that is in itself ground for criticism of any decision-maker’s reasons – or the judgment of a court for that matter.  In fact the Tribunal’s reasons under the heading “Discussion and findings” cover four pages, most of which is taken up with analysis of the applicant’s case.  If “cursory” means “going rapidly over something, without noticing details; hasty; superficial” (Macquarie Dictionary), I do not think the criticism is justified.  The Tribunal applied rational techniques of fact-finding, as I think is sufficiently illustrated by the passages I have already quoted.  In particular, it considered the inherent probability or otherwise of the applicant’s account against the background of the surrounding circumstances.  This function was within the exclusive province of the Tribunal as a finder of fact.  The central factual finding that, contrary to the applicant’s assertion, he had not been suspected of involvement in the Dehiwela bombing or charged with any offence in relation thereto, was clearly open to the Tribunal. 

As to the complaint of failure to “thoroughly investigate” the applicant’s claims, it is not clear to me what else the Tribunal could reasonably be expected to do.  It was said that the Tribunal did not “reasonably consider or investigate” the non-disclosure of the names of the tenants.  However in the end this became at most a question going to credibility.  The Tribunal was prepared to accept that there were in fact tenants. 

Counsel complained that the Tribunal’s use of materials suggesting that Sinhalese generally were not suspected of supporting the LTTE or being implicated in the Dehiwela bombing was an instance of acting in a “general way without giving genuine consideration to the applicant’s case”.  This could be regarded as an improper exercise of a discretionary power in accordance with a rule or policy without consideration of the merits of the particular case:  Migration Act 1958 (Cth) s 476(3)(c).

I do not agree.  This was not the rigid application of some general rule but rather using a particular factual circumstance, namely that Sinhalese were not suspected of involvement in the bombing, as one matter, amongst others, bearing on the credibility of the applicant’s case.

Failure to engage in speculation – “What if I am wrong?”

Counsel for the applicant argued that the Tribunal “did not engage itself in reasonable speculations as to the chances of persecution if it was wrong in its findings of fact”.  In argument counsel referred to the “What if I am wrong?” test based on what was said by Kirby J in Minister for Immigration etc v Wu Shan Liang (1996) 185 CLR 259 at 293. His Honour there said:

“Evaluation of chance, as required by Chan cannot be reduced to scientific precision.  That is why it is necessary, notwithstanding particular findings, for the decision-maker in the end to return to the question: ‘What if I am wrong?’  (Guo Wei Rong v Minister for Immigration etc (1996) 135 ALR 421 at 441, per Einfeld J) Otherwise, by eliminating facts on the way to the final conclusion, based upon what seems ‘likely’ or ‘entitled to greater weight’, the decision-maker may be left with nothing upon which to conduct the speculation necessary to the evaluation of the facts taken as a whole, insofar as they are said to give rise to a ‘real chance’ of persecution.”

This passage does not find any echo in the joint judgment of the majority (Brennan CJ, Toohey, McHugh and Gummow JJ in Wu.  The judgment of the Full Court in Guo was subsequently overturned by the High Court: (1997) 144 ALR 567. In so doing the majority (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ) rejected the “What if I am wrong?” approach. Their Honours (144 ALR at 579) quoted a passage from the judgment of Einfeld J in the Full Court (135 ALR 421 at 446) which concludes:

“However, no consideration was given by the tribunal to the possibility that any of its findings were inaccurate, and that there was in fact a possibility that the prior punishment had been Convention-related.”

Although this appears at a different part of Einfeld J’s judgment from that referred to by Kirby J in Guo, the substance is the same.  The majority in Guo continue (at 579-580):

“With respect to his Honour, this criticism of the tribunal’s reasons is wrong.  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.”

The clear findings of fact in the present case as to the past events, and in particular the finding that the applicant was not suspected in relation to the Dehiwela bombing, was a sufficient basis for the conclusion the Tribunal reached.

Orders

The application will be dismissed with costs, including reserved costs.

I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey

Associate:

Dated:             6 November 1998

Counsel for the Applicant:	Mr T E Wraight
Solicitor for the Applicant:	Satchi & Co
Counsel for the Respondent:	Mr W Mosley
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	29 October 1998
Date of Judgment:	6 November 1998