Mahroof v Minister for Immigration and Multicultural Affairs

[2001] FCA 566

FEDERAL COURT OF AUSTRALIA

Mahroof v Minister for Immigration & Multicultural Affairs [2001] FCA 566

MIGRATIONS – protection visa – remitter from High Court of application for constitutional writs – questions of fact

NOOHU LEBBE MAHROOF and OTHERS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 117 OF 20001

HEEREY J
4 MAY 2001
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 117 OF 2001

BETWEEN:	NOOHU LEBBE MAHROOF and OTHERS APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	HEEREY J
DATE OF ORDER:	4 MAY 2001
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The application insofar as it is remitted to this Court, be 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 117 OF 2001

BETWEEN:	NOOHU LEBBE MAHROOF and OTHERS APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	HEEREY J
DATE:	4 MAY 2001
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This matter comes to the court by way of remitter from the High Court of so much of the applicant’s application for constitutional writs in the High Court as is within the jurisdiction of this Court.  The applicant seeks review of the decision of the Refugee Review Tribunal made on 20 May 1996 affirming a decision of a delegate to the Minister not to grant a protection visa.  I incorporate by reference to the reasons of the Tribunal.

2. Part of the matters that were debated in argument before me concern the way the Tribunal dealt with and decided the applicant’s Convention claim based on political opinion, namely imputed support for the LTTE.  There were other claims dealt with by the Tribunal to which it is not necessary to refer. 

3. From 1992 onwards the applicant had conducted a business in Colombo through a company called Orient Marine International Pty Ltd as a supplier of marine outboard motors and accessories.  His company was the chief supplier to the Sri Lankan navy.  He claimed that the LTTE intimidated him into supplying information about defence equipment and the like.

4. On 19 September 1994 the LTTE carried out a suicide attack on a Sri Lankan naval patrol vessel, resulting in the death of 25 sailors.  The applicant claimed that he had been on a brief visit to India and returned on 19 October 1994.  The authorities detained him, accused him of supplying secret naval defence data to the Indian government and requested him to appear before the secret police in Colombo.  He was detained after midnight and allowed to go home two days later after paying a bribe of 25,000 rupees.  He was required to return the next morning.  When he did so he was retained at CID headquarters for 24 hours, interrogated and beaten.

5. He was accused of complicity in the attack on the naval vessel the previous month.  He claimed he was only released because of the personal intervention of Mr Gemanaya Disiniaka, the then leader of the UNP.  The applicant was planning to go to Australia to attend a Trade Fair.  At the airport he was questioned about his reason for his trip and was told that the authorities were suspicious of his movements and that they were certain that he was implicated in the attack on the vessel.  They wished to see him when he returned.  Shortly after the applicant arrived in Australia Mr Disiniaka was assassinated.

6. In dealing with this matter the Tribunal noted that the LTTE officially accepted responsibility for the attack on the vessel and a board of inquiry was established on 25 September.  The applicant had left for India on 16 October and the Tribunal noted that it was “curious” that he was not questioned about this incident prior to his departure.  The Tribunal said that there were some areas which gave “cause for concern about the plausibility and credibility of his account”.  In particular, the Tribunal rejected his claim that his business had been closed down after his departure.  There was a letter he wrote subsequently from Australia quite inconsistent with that assertion.

7. The applicant had also claimed that one of the boats used in the LTTE attack had been found to be equipped with a propeller supplied by his company.

8. The Tribunal said:

   “The Tribunal does not accept the applicant’s account that the business was closed either in November 1994 or February 1995.  As a consequence the Tribunal has doubts about the claims concerning the supply of the propeller.  The supply of this equipment was sourced to the applicant’s company.  It is reasonable to assume that not only the applicant but his associates and employees would also be questioned by the security forces and indeed that the business would be closed.”

9. After rejecting his assertion that his only contact in the party was Mr Disiniaka and therefore there was nobody else in the party who would assist him after the assassination, the Tribunal said that it had reached a state of a positive belief in regard to his claims about being pursued by the security forces since his departure.

10. The Tribunal then said:

    “Putting the Tribunal’s concerns about the applicant’s credibility to one side, the question still remains as to whether the totality of the applicant’s actions could reasonably be seen as an act of support for the LTTE or whether a person such as the applicant, given his cultural and religious identity, his political affiliation and activity, and his past experiences, would result in only a remote chance of him being considered to be an LTTE supporter.  He claimed that the only incident over which he was suspected as such was the supply of the propeller.  This, he claimed, was the only thing he was questioned about by the CID.  Although he also claimed in his primary application that he was questioned about by the CID.  Although he also claimed in his primary application that he was questioned about certain connections with the Indian government, he did not elaborate further.

    An associated question in relation to the security forces’ interest in the applicant is whether he was investigated for a Convention reason (imputed political opinion) or whether they sought to question him in relation to a criminal act, that is, supply a terrorist organisation with equipment, or breaching his agreement with the Navy.  The applicant did not supply equipment and information to the LTTE in Colombo out of political motivation.  He claims to have been coerced into it.  Given the specific circumstances of the applicant’s situation, (his ethnicity, his membership of the UNP, his past experiences with the LTTE) the Tribunal finds that if there is only a remote possibility that he would be regarded as an LTTE supporter.  The Tribunal does not agree with the assessment made by the applicant’s advisor, that being a Muslim makes no difference to how one is viewed.  It is correct to say that there have been (very few) instances of people from all ethnic backgrounds and political persuasions who have assisted the LTTE and other terrorist groups – as reported by DFAT – but given the applicant’s profile, this would result in only a very remote possibility that he would be seen to be allied to the LTTE.  It is possible therefore that the applicant may have been questioned in relation to the explosion of the ship because he may have been suspected of supplying the propeller, it is only remotely possible though that he would have been regarded as an LTTE supporter.”

11. Counsel for the applicant submitted that there was a reviewable error in that procedures required by the applicant were not observed and there was error of law: ss 430(1), 476(1)(a) and 476(1)(e).  In the way counsel put the case, those two grounds arise from the passages from the Tribunal’s reasons just quoted.  It was said that the Tribunal, having found as a fact that it was possible that the applicant had been questioned in relation to the attack on the vessel, it should have gone on to find that he had a well-founded fear of persecution.  It was said either the Tribunal had not expressed its reasons for failing to make this step or alternatively it had required too high a standard and had imposed a more onerous obligation than making out a fear of a “real chance” of persecution.  Put another way, it was said that the Tribunal had failed to appreciate what it found could have founded a real fear of persecution.

12. In my view the applicant’s arguments really amount to no more than criticism of the fact-finding process of the Tribunal and as such do not disclose reviewable error.  I think, read as a whole, the Tribunal’s reasons indicate that it was not satisfied that the authorities had questioned the applicant in relation to suspicions of involvement in the attack on the vessel but what the Tribunal then does is to consider an alternative hypothesis, namely that if he was questioned or suspected, whether he had a well-founded fear of persecution for a Convention reason, the only one suggested being imputed political opinion.

13. The two paragraphs I have quoted make it reasonably clear that the Tribunal was making a factual finding that even if there was suspicion about the applicant's involvement in the attack on the ship, nevertheless that would be no more than involvement in a criminal act so that any action the authorities took against him would not be by reason of political opinion.  The Tribunal gives reasons for that conclusion, namely that he was a Muslim, and as appears elsewhere in the reasons, there was longstanding hostility between the LTTE and Muslims.  Also, as again appears elsewhere in the reasons, he did not fit the profile of Tamil speakers in Colombo with whom the authorities were usually concerned.

14. This was clearly a legitimate field of inquiry for the Tribunal to consider and in my opinion no reviewable error has been disclosed in the way the Tribunal dealt with this issue. 

15. The application insofar as it is remitted to this Court will be dismissed.

16. I order the applicant pay the respondents costs to be taxed, including reserved costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate:

Dated:             17 May 2001

Counsel for the Applicant:	T R Hurley
Solicitor for the Applicant:	Ravi James & Associates
Counsel for the Respondent:	J A Gibson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	4 May 2001
Date of Judgment:	4 May 2001