M153 of 2004 & Ors v Minister for Immigration
[2006] FMCA 42
•24 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M153 of 2004 & ORS v MINISTER FOR IMMIGRATION | [2006] FMCA 42 |
| MIGRATION − Refugee visa application − whether Tribunal failed to consider claim of fear of extortion by reason of ethnicity or membership of social group − whether Tribunal should have considered risk of persecution when it rejected claim of detention by Sri Lankan authorities was wrong − whether Tribunal's findings were irrational or illogical. |
| Ram v Minister for Immigration & Multicultural Affairs (1995) 57 FCR 565 Perampalam v Minister for Immigration & Multicultural Affairs (1999) 84 FCR 274 Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 Avesta v Minister for Immigration & Multicultural Affairs [2002] FCAFC 121 Fernando v Minister for Immigration & Multicultural Affairs [2000] FCA 760 SFGB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALD 402 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 52 |
| Applicant: | APPLICANT M153 OF 2004 & ORS |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 495 of 2005 |
| Judgment of: | Phipps FM |
| Hearing date: | 3 August 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 24 January 2006 |
REPRESENTATION
| Pro bono Counsel for the Applicant: | Mr Kingston |
| Counsel for the Respondent: | Ms Costello |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The Applicant pay the Respondent’s costs fixed at $5,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 495 of 2005
| APPLICANT M153 OF 2004 & ORS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicants are husband and wife and their two daughters. They are Tamil citizens of Sri Lanka and have applied for protection visas. Only the husband makes specific claims under the Refugees Convention. His wife and children are relying upon their membership of his family. Their applications have been rejected and the rejection affirmed by the Refugee Review Tribunal. They applied to the High Court. The application was remitted to the Federal Court and then transferred to the Federal Magistrate's Court.
History
The applicants arrived in Australia on 3 February 2000 and applied for refugee visas on 7 March 2000. On 6 April 2000, their applications were refused. On 30 May 2000, they applied for review of that decision. The Tribunal affirmed the delegate’s decision on 8 April 2002. On 30 May 2003, that decision was set aside by the Federal Court and remitted to the Tribunal.
By a decision made on 30 October 2003, the Tribunal again affirmed the delegate’s decision not to grant the visas. They then filed proceedings in the High Court of Australia which were remitted to the Federal Court on 8 November 2004, then transferred to the Federal Magistrate's Court. The application to the High Court was for an order nisi to show cause. The hearing in the Federal Magistrate's Court was argued as a final hearing.
The Tribunal's decision
The Tribunal accepted the applicant’s account of his education, employment and places of residence. He was born in the north of Sri Lanka and went to school there. He attended a university near Colombo and obtained a civil engineering diploma. He worked in Colombo from 1981 until 1985. From 1988 until 1993 (except for two years in India), the applicant worked for a Colombo based firm, but was posted to locations in the northeast of the country to work on road projects. From July 1994 until January 2000, the month before he came to Australia, he worked in the Middle East. He returned to Sri Lanka in 1994 and again with his family in 1996 and 1998. They stayed in Colombo.
The husband claimed that in 1998, the son of one of his cousins was staying in the Lodge in Colombo where he and his family were staying. He shared a room with the cousin’s son. One night police surrounded the Lodge, checked identities, and took both the husband and the cousin's son to the police station. He claims they were interrogated and tortured. He was accused of gathering information for the LTTE and was told that his cousin's son was an LTTE member.
The husband claimed that he was released upon payment of a bribe. He left Sri Lanka after bribing Immigration and Customs officers at the airport. His wife and children remained in Colombo for a little longer because her parents had arranged to travel down from Jaffna to see them. The applicant decided he should never return to Colombo.
The Tribunal accepted that the husband was detained by the Indian Army Peacekeeping Force in 1988 and ill treated. He was abducted by LTTE members in 1989 wanting information about money paid to contractors and what materials were used. The husband said that the LTTE wanted this information so they could go to the contractors and demand to be paid a percentage. The Tribunal accepted that he would have been subject to checking by the army.
The applicant claimed to fear he will be harmed by the LTTE and by the authorities if he were to return to his country.
The Tribunal said there are four elements of the husband's fear of the LTTE: his fear that they will seek to harm him because in 1989 he failed to provide information about the details of the road projects he was working on at that time; his fear that he will be remembered for having spoken against the LTTE when he was young; his fear that they will seek to extort money from him upon return; and his fear that the LTTE will regard him as a traitor because he did not arrange for his cousin's son to be released from custody after they were both arrested.
The Tribunal found that none of the matters gave rise to a well founded fear of persecution.
The applicants’ arguments
The applicants’ amended application raises three grounds:
a)In respect of the husband’s claim that he feared that the LTTE would seek to extort money from him upon his return to Sri Lanka, the Tribunal failed to consider the applicants’ case that the extortion would be for reasons of his Tamil ethnicity, and failed to consider whether such extortion would be the reason of the applicants’ membership of a particular social group, Tamils returning to Sri Lanka from overseas or Tamils perceived to have money.
b)In respect of the claim that the husband feared persecution by Sri Lankan authorities based in part on alleged detention and torture by those authorities in December 1998, the Tribunal, in rejecting that the alleged detention and tortured had taken place, failed to take into account the possibility that the detention and torture may have occurred even though it came to the view that they did not occur.
c)In respect of the claim of the husband that he feared persecution by Sri Lankan authorities based in part on detention and torture by those authorities in December 1998;
i)three of the grounds for the decision are based on findings for which there was no information from which the Tribunal could realistically make those finding;
ii)one of the grounds for decision was irrational, illogical, and not based on findings or inferences of fact supported by logical grounds.
The extortion ground
The applicants submit that the Tribunal's treatment of the husband's fear of extortion if he returns to Sri Lanka suggests that the Tribunal did not appreciate that the extortion which the applicant feared would be directed towards him by the LTTE because he is a Tamil.
The submission refers to the Tribunal's statement "I do not consider that the evidence indicates that it would be anything other than an opportunistic grab for money". The submission then refers to the Tribunal’s consideration that the fear the husband claimed was analogous to the circumstances described in Ram v Minister for Immigration & Multicultural Affairs (1995) 57 FCR 565. There, Burchett J. said that extortionists in that case were not implementing a policy but simply extracting money from a suitable victim. The applicant in that case did not fear persecution for reasons of membership of a particular social group, but extortion based on a perception of his personal wealth and aimed at him individually.
The applicants’ submission is that if the Tribunal appreciated that the feared extortion was likely to be directed towards the applicant because he was Tamil, it would have been more likely to refer to the decision in Perampalam v Minister for Immigration & Multicultural Affairs (1999) 84 FCR 274. In that case, Burchett and Lee JJ said at p 283 that extortion directed at members of a particular race from whom something might be extorted cannot be excluded from the concept of persecution.
The applicants’ submission refers to references in the Tribunal's reasons to the claim that the applicant made.
In dealing with this claim the Tribunal says:
The applicant is concerned that the LTTE will seek to extort money from him upon return because he would be thought to have money given that he has worked abroad for so long. There has been no such approach to him in the past but if this were to occur I do not consider that the evidence indicates that it would be anything other than an opportunistic grab for money. What the applicant seems to me to fear is analogous with the circumstances described in [Ram].
The Tribunal sets out an extract from page 569 of the judgment in Ram. The Tribunal then continues:
I do not consider that the evidence about the applicant’s circumstances indicates that there is a real chance that the applicant’s race, religion, nationality, membership of a particular social group or his actual or imputed political opinion would be the essential and significant reason for any extortion demands which he may face upon return from the LTTE; rather the essential and significant reason for such treatment would be his perceived possession of money. Consequently such treatment does not constitute persecution within the meaning of the Refugees Convention.
The Tribunal referred to a submission from the applicants’ representative forwarded on the day of the hearing. The Tribunal recites that in that submission, the husband submits that LTTE cadres have infiltrated Colombo and are abducting Tamil youths and extorting money from Tamils there. The Tribunal referred to country information which contained a statement that many Tamils in the north and east face extortion at the hands of the LTTE. Therefore, the Tribunal's reasons show that it was aware that the applicants claim was fear of extortion because he is a Tamil.
The Tribunal's treatment of this claim does not suggest that it did not appreciate that the extortion the husband feared was extortion because he was a Tamil. Rather, the Tribunal's finding suggests the opposite. It makes a specific finding that if there is any extortion it was for a non convention reason, an opportunistic grab for money. It’s statement that it does not consider that there is a real chance that the applicant’s race, religion, nationality, membership of a particular social group or his actual or imputed political opinion would be the essential and significant reason for any extortion demands is not, in the context, a mere recitation of Convention grounds. Combined with the positive finding that any extortion would be opportunistic, it constitutes a specific rejection by the Tribunal of risk of extortion on those grounds. The Tribunal has dealt with the husband's claim that he fears extortion because he is Tamil.
An extension of the applicant's argument on this basis is that the Tribunal should have considered whether the applicant feared extortion by the LTTE by reason of his membership of a particular social group, Tamils returning to Sri Lanka from overseas or Tamils perceived to have money.
An essential element in each of the particular social groups the applicant's argument describes is Tamil ethnicity. The answer to this part of the applicants’ argument is that the Tribunal has found that any extortion would be opportunistic and not because the husband is a Tamil. That means that an essential finding of fact necessary to establish persecution because of membership of a particular social group does not exist. If it is accepted that the two groups described meet the requirements of being a particular social group, for the husband to the persecuted because he belonged to one of those groups, one of the reasons for the persecution would have to be because he is a Tamil. That possibility has been considered by the Tribunal and rejected.
Therefore, had the Tribunal specifically considered persecution as a member of either of the particular social groups, it would have rejected the claim. It is not necessary to consider whether the Tribunal should have specifically considered either of those social groups.
Possibility that detention and torture may have occurred
The husband's claim that he fears persecution by the authorities in Sri Lanka if he returns is based on his claim that he was arrested, tortured and interrogated in December 1998 on suspicion of having links to the LTTE because he was in the company of his cousin’s son. The Tribunal did not accept that the events in December 1998 occurred. Consequently, it did not accept that his fingerprints are held by the Sri Lankan police in connection with links to the LTTE, or that he was suspected of having such links. It did not accept that the LTTE would seek to harm him because he did not act to assist his cousin's sons release from custody, or that his claimed detention in December 1998 would lead the husband or his family to face further investigation, arrest or harm at the hands of the authorities.
The applicants’ argue that this is a case where the Tribunal should have taken into account the possibility that the 1998 events occurred even though it found that those events did not occur.
A substantial basis for fear may exist even though it is less than a 50% chance that the object of the fear will eventuate (Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379, Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559). The Tribunal may believe that persecution will not occur if an applicant has returned but may nevertheless be obliged to consider that there is a real chance that it will occur (Avesta v Minister for Immigration & Multicultural Affairs [2002] FCAFC 121).
If the Tribunal’s reasoning shows that it had "no real doubt" (Guo), or the finding in relation to the events is "a positive and unhesitant one" (Fernando v Minister for Immigration & Multicultural Affairs [2000] FCA 760 at [32]), then the Tribunal is not required to consider whether there is a real chance of persecution if it is wrong in its finding.
The Tribunal said that it accepted that the applicant was injured while he was in Colombo in December 1998, but concluded that the husband had not given an accurate account. It gave four reasons and explained them at some length. It concluded by saying:
All of the evidence has led me to conclude that the episode described by the applicant did not occur: I do not accept that the applicant was arrested and detained and interrogated and tortured in December 1998 on suspicion of associating with the LTTE and it follows that I do not accept that [his cousin’s son] was arrested, detained and has not been heard of since. I do not know what led to the injuries the applicant claims to have sustained but cannot from the evidence before me conclude that they were inflicted by the police or army or that the reason involved a matter which could relate to any of the reasons in the Refugees Convention.
The Tribunal expresses no doubt in making this finding. It sets out in detail its reasons for making the finding. This is not a case where the Tribunal is required to consider whether it might be wrong and whether, notwithstanding its finding, there might still be a real chance of persecution.
Findings based on lack of information and lack of logic
This ground criticises the reasoning of the Tribunal in concluding that the husband was not detained in December 1998 on suspicion of supporting the LTTE. The Tribunal gave four reasons. The applicants’ argument criticises the reasoning in three of them.
The second reason given by the Tribunal for doubting the husband's claim is that he would not have been released as claimed upon payment of the bribe if he was seriously suspected of having connections to the LTTE. The Tribunal said that there are corrupt police who may consider releasing a suspect upon payment of a bribe, but it said that it considered that the intensity of the conflict indicates that this would be a rare occurrence.
The applicants’ submission argues that there was material before the Tribunal showing that an intense conflict was occurring between the LTTE and the Sri Lankan authorities, but not material which showed bribe taking was a rare occurrence. On the contrary, there was material in the independent country information that there was widespread bribe taking by police in relation to the arrest of Tamils. The applicants’ argue that in these circumstances, the Tribunal's finding is illogical and not based on any information.
The third reason given by the Tribunal for its finding is that it found the husband's statements about engaging an agent, who knew which customs and immigration officials to pay in order to enable the applicant to leave the country, to be a fabrication. The reason the Tribunal gave was that the practicalities of such arrangements at an airport extremely sensitive to security considerations weighs heavily against the credibility of the scenario described by the applicant.
The applicants’ argue that there was no information before the Tribunal which could establish that Colombo airport was highly secure, or that the officials who worked at the airport were not susceptible to bribes. The argument says that the deduction was contrary to the material about widespread bribery contained in the independent country information.
The fourth reason given by the Tribunal for rejecting the husband's claim about December 1998 is that shortly after his release from detention, the applicant left the country without his family. The Tribunal considered that if the detention had occurred, the husband's family would have been at risk by remaining in Colombo. It rejected the explanation that she stayed there because she had not seen her parents for eight years and they were at that time travelling from Jaffna to meet them.
The applicants’ argument refers to material before the Tribunal contained in the husband's statement that his wife refused to go because she wanted to see her parents, and that the children's names were endorsed on the wife's passport so he could not take them himself.
In SFGB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALD 402, the Full Court of the Federal Court said if there was no information from which the Tribunal could realistically draw the conclusion that it did in making a finding, that could be sufficient to establish that the Tribunal made a jurisdictional error.
In Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12, Gummow and Hayne JJ said that satisfaction that the requirements for a visa had been met is a jurisdictional fact, and there may be jurisdictional error if the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds.
The Full Court of the Federal Court has held that want of logic does not of itself constitute an error of law (NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 52).
The Tribunal's reasoning as a whole must be looked at. Crucially, it had to decide whether it accepted that the detention and then release upon payment of a bribe which the husband claimed had occurred in December 1998 had happened. It was not required to accept uncritically what the husband said. The Tribunal looked at these significant aspects; the likelihood of the authorities detaining a Tamil in Colombo such as the husband, the claim that bribes were paid to the police and at the airport, and the departure of the husband without his family.
The criticisms in the applicants’ argument come down to two things. The first is that the Tribunal could not logically or rationally use the information about the intensity of the conflict as a means of assessing the likelihood of bribery. The second is that the Tribunal could not logically or rationally use the husband's leaving Colombo without his family as a basis for assessing his credibility.
There is not a lack of logic or racial reasoning that amounts to jurisdictional error. The Tribunal had information about the intensity of the conflict between the LTTE and the Sri Lankan authorities. It had information about the taking of bribes. Reasoning which says that someone on one side of an intense conflict would be unlikely to take a bribe and release someone on the other side of the conflict is not irrational or illogical.
Reasoning which says that a husband, who feared that he and his family were in such danger that they should leave immediately, would not leave without his family is not irrational or illogical. The Tribunal does not make this finding in isolation, but in the context of all the information available to it, including information about the relationship between the husband and his wife and children, and his attitude to them. It is not an irrational or illogical finding.
The first respondent submits that the application for an order nisi is incompetent because it is outside the time limits imposed by the High Court rules. As the application will be dismissed on its merits, there is no need to consider whether there should be an extension of time.
I will deal with the application by making a final determination, not by refusing to grant an order nisi.
I certify that the preceding Forty-four (44) paragraphs are a true copy of the reasons for judgment of Phipps FM
Associate: Sherryn Kwong
Date: 24 January 2006
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