Mookiah v Minister for Immigration and Multicultural Affairs

[1999] FCA 720

FEDERAL COURT OF AUSTRALIA

Mookiah v Minister for Immigration & Multicultural Affairs [1999] FCA 720

MIGRATION – appeal from refusal of RRT to allow application for asylum – Hindu Tamil from Sri Lanka who is sympathetic to the Tamil Tigers – fear of persecution on the basis of imputed political opinion – whether the Tribunal erred in law by rejecting a number of the applicant’s principal factual allegations on ground of implausibility without supporting evidence.

WORDS AND PHRASES – “fear of persecution”

Migration Act 1958 (Cth)

Randhawa v Minister for Immigration and Ethnic Affairs [1992] 52 FCR 437 followed

KAMALANATHAN MOOKIAH V MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

NG 230 OF 1998

THE HON JUSTICE MARCUS EINFELD AO
SYDNEY
31 MAY 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 230 OF 1998

BETWEEN:	KAMALANATHAN MOOKIAH Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent
JUDGE:	THE HON JUSTICE MARCUS EINFELD AO
DATE OF ORDER:	31 MAY 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   the decision of the Tribunal be set aside

2.   the matter be remitted for hearing to a differently constituted Tribunal

3.   the respondent pay the applicant’s costs

Note:    Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 230 OF 1998

BETWEEN:	KAMALANATHAN MOOKIAH Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE:	THE HON JUSTICE MARCUS EINFELD AO
DATE:	31 MAY 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a Hindu Tamil from Sri Lanka in his late 20s who arrived in Australia on either 25 June or 26 July 1995.  An application for asylum was refused by the Minister’s delegate on 23 October 1996 and the refusal was affirmed by the Refugee Review Tribunal on 25 February 1998.  He now appeals the refusal to this Court.

2. The applicant’s principal claim is that as a Tamil sympathetic to the Tamil Tigers, he is in fear of persecution from Government forces and other Sinhalese, based on a number of past acts of harassment and discrimination including arrests, detention and torture, and injury in a bombing raid by the Sri Lankan air force.  His persecution was and would now be on the basis of an imputed political opinion being his support for the Tigers.

3. The case was determined by the Tribunal on the basis of a rejection of a number of the applicant’s principal factual allegations.  To set the background to the applicant’s challenge to this rejection, it is necessary to summarise a number of these allegations as made to the Tribunal:

   1.The applicant claimed that he and his family have been victimised as Tamils for about 15 years.  His parents live in Jaffna.  Of his 8 brothers and sisters, 6 live in Jaffna, one in Colombo and one in Australia.  His passport, issued in 1993, gives his address as Colombo.

   2.From 1983 to 1987 because of actions by the Tigers in and around his village, the Sri Lankan army conducted a campaign against them there.  In 1987 the applicant’s home was demolished and the family went to Tamil Nadu in India in a fishing boat.

   3.In Tamil Nadu the applicant was recruited by the Tigers for training and his brother voluntarily worked for them.  The applicant resisted joining the Tigers, instead completing a Diploma in Welding in 1988.  He found a job in Madras but also agreed to do welding work for the Tigers at nights and on weekends from January 1989 because “he feared for his safety”.

   4.After the assassination of Rajiv Gandhi in 1991, he was arrested by Indian police for his links with the Tigers.  He was detained for 10 days and beaten and kicked.  After his release he was sacked from his job and required to report to police daily.

   5.In 1991 the family returned to Jaffna which the Tigers then controlled.  In return for being allowed to live in a house there, the applicant did welding work for the Tigers.  His brother joined the organisation.

   6.In early November 1992, the applicant and his brother were required to assist a major offensive proposed by the Tigers.  The Sri Lankan Air Force bombed the camp in which he and his brother were located.  The brother was killed.  The applicant’s left leg was badly wounded, he was treated in a hospital and was confined to bed for about 2 months.

   7.In late December 1992 he went to Colombo where it was difficult for him to stay because of the activities of anti-Tiger groups.  Following advice received, he went to India in February 1993 to get a false Indian passport with a view to travelling to Switzerland or Germany but that exercise failed so he returned to Colombo.

   8.Thereafter, from 1993 to 1995, he sustained intermittent harassment and mistreatment including at least 3 periods of detention of from 15 hours in April 1993 to 3 weeks in September/October 1994 during which he was constantly brutalised and deprived of food.  During this time he had a job as a salesman of welding equipment travelling around Sri Lanka on selling trips.  He also went to India and Singapore for short periods, each time returning to Colombo.  On his business trips within Sri Lanka he was often stopped and extensively questioned at checkpoints.  The purpose of the trips overseas was to get, for large sums of money, false passports to go to third countries.  None of the plans worked although he paid over the money sought.

   9.His last detention was for 2 days upon returning from Singapore in March 1995.  He claims that his release was only achieved by a bribe from his employer whereafter he stayed with friends in Colombo for 3 months and then travelled to Singapore, Malaysia and Australia.

   10.In his application to the respondent’s department for refugee status, and in his passport, he described himself as a sales executive.  In his evidence to the Tribunal he said he was not employed as a salesman at the time his passport was issued.

   11.The applicant claims to be on an Indian police or government list of people involved with the Tigers and says that he is of interest to the Sri Lankan authorities for the same reason.

   Of the claim that the applicant was injured in an air raid in which his brother was killed, the Tribunal said:

   In August 1991 the applicant and his family were repatriated to Jaffna from India.  From that time until the end of 1992 the applicant claims that he was in Jaffna and assisting in various ways the LTTE, culminating in him being injured in November 1992 in an incident in which his brother was killed.  He claims he was hospitalised for two months.  He also claims that in December of that year he resettled to Colombo.  This does not seem plausible given that the applicant claims to have been injured in a bombing raid by the Sri Lankan air force in November 1992 to the extent that he was hospitalised for two months.  If the Tribunal is to accept that the applicant did relocate to Colombo in December then it is not possible that he was injured in Jaffna in November and hospitalised for two months as claimed.  The Tribunal does not accept either of these claims are true.

4. It is not clear what claims the Tribunal was rejecting or how and why it rejected them.  First of all, it spoke of two claims (“either of these claims”) when there are many claims in this account of events.  Secondly, I have found no evidence that the applicant ever said that he was hospitalised for two months.  What he said was that he was hospitalised, and confined to bed for about two months.  It is not inconsistent that the applicant could have been confined to bed and relocated to Colombo within the same period.  In fact he was treated in hospital on 2 November 1992 and then discharged and he relocated to Colombo on 30 December 1992, 2 days less than 2 months later.  Moreover, rejecting that relocation to Colombo could have occurred in December does not render untruthful that he was injured as claimed.  And why and how both hospitalisation and relocation should be rejected are entirely unexplained.  The air raid on the camp when he was stationed there, the injury and hospitalisation, and the brother’s killing could all no doubt have been confirmed or disposed of by externally obtained objective evidence.  Their occurrence cannot just be dismissed, out of hand, because the Tribunal thinks them implausible.  They are not inherently so.  As many Judges of the Court have been at pains to point out in the recent past, credibility simply cannot be used to deny claims on such a flimsy basis.  Doubts of this kind must be expressly raised with the applicant before any conclusions can be drawn.  The transcript of the Tribunal hearing shows that they were not, so no opportunity was afforded to him to refute them.  Nor was a logical inconsistency or disproof by other evidence identified or explained.

5. The Tribunal also rejected as implausible the applicant’s claims that he undertook “several attempts to exit the country by purchasing, through agents, documents from Sri Lanka and going to India and Singapore where false documents were supposed to be waiting”. These statements may or may not be true but there is nothing inherently implausible about them. It is an error of law under section 476 of the Migration Act 1958 to reject evidence without a reasoned explanation as to why it should be rejected.

6. The Tribunal also described as “not plausible” the applicant’s “claims that he paid large sums of money and travelled to other countries with instructions to go to hotels and wait until someone turned up with false passports and other travel documents”.  It said that the implausibility was “not explained by claiming that he was taken advantage of by unscrupulous agents …. given the amount of money involved and indeed the common sense of the arrangements that the applicant would go to foreign countries on the promise of documents waiting for him”.

7. This generalised statement of the claims has served to distort the evidence.  As I read the evidence, there were 4 trips to obtain false papers for money, two to India in February and May 1993, another to India in October/November 1994, and one to Singapore in 1995.  The only amounts of money I have found in the evidence were 550,000 rupees (said to be about $A13,000) for one of the 1993 trips to Bombay, which he borrowed from his father (50,000 rupees) and his brother (500,000 rupees), and 500,000 rupees (about $A12,000) for the trip to Singapore.  Once again, these claims may be true or untrue but they are not inherently implausible.  The trips at least could have been verified from passport stamps.  Hotel bills would verify whether he was ever in hotels at the relevant times.  Evidence of the gifts/loans of the money could have been available.  There may be other objective evidence to verify or refute these claims.  They just cannot be rejected without any indication of the reasons for doing so.

8. The Tribunal also rejected the applicant’s claims that these trips were for the purposes stated and found that they were for business reasons.  It based these conclusions on the fact that the applicant’s passport and his application for refugee status in Australia state that he was a sales executive.  The Tribunal rejected his denial that he was ever a sales executive and found that the applicant had been “a businessman” in Colombo “for some substantial though unknown length of time prior to his first business trip in February 1993”.  It gave no explanation as to how it reached that conclusion or even what “business” it found the applicant to have been operating or involved in.  It merely considered

   that a plausible and reasonable explanation of [the conflict between his claims and denial to be a sales executive] is that in fact the applicant was a sales executive at the time his passport was issued, and whilst the Tribunal does not know for how long, considers that it most reasonable [sic] to accept and find that it had been for some substantial time as evidenced by his trips to India in February/March 1993, and in May 1993.

9. It does not appear that these assertions were put to the applicant at the hearing before the Tribunal.  If they were, its reasons for judgment do not note any reliance on or rejection of his replies.  There is simply no explanation for the Tribunal’s conclusions except their supposed implausibility.  I cannot see anything implausible about them at all.  They may be untrue but they cannot be so categorised without reason.

10. The Tribunal rejected as implausible the applicant’s claim to be on an Indian list of persons associated with the Tamil Tigers.  Its reason for this finding was that he has been able to travel to and from India on 3 occasions on his own passport.  Without more, these two things are or may be quite unrelated but the point is irrelevant because, without further evidence, being adversely noted by India has nothing to do with a fear of persecution by Sri Lankan authorities.

11. On the other hand, interest in him by the Sri Lankan authorities is or may be of prime importance.  The Tribunal did not accept as “reasonable” that the applicant would have been able to leave and re-enter Sri Lanka if he was of any interest to the authorities, and concluded that on the available evidence “the applicant is not on any list of wanted persons and is of no interest to the Sri Lankan authorities”.  It grounded its findings and conclusions on these facts and this reasoning:

    1.A 1997 report of a Danish fact finding mission to Sri Lanka stated that “the country is in a state of heightened awareness in relation to possible terrorist activity and that the authorities are vigilant in relation to all persons entering and leaving the country.

    2.The Tribunal interpreted this statement as meaning that a person who claims to be on a “list” or of adverse interest to the authorities would not be able to pass through customs.

    3.The applicant was detained on only one return from overseas and his release was secured by his employer.

    4.The 1997 Danish report stated that departure procedure has been unchanged for 6 years in that all persons departing are checked by an immigration officer and by a NIB officer “against a constantly updated manual list of wanted and expelled persons”.  Illegal departures of wanted people could only occur with the complicity of an NIB departure control officer and no case of bribing of such an official had come to light over the previous 6 years.

    5.The fact that the applicant had been travelling around Sri Lanka on business every week for 15 months during which travels he was repeatedly stopped at checkpoints but detained only once also evidence the lack of interest in him of the authorities.  His subsequent release indicated to the Tribunal that he was not considered to be a serious threat.

12. There are a number of non sequiturs in that catalogue of reasons.  Firstly, being on a list is not the same as being a wanted or expelled person or a suspected terrorist.  The Danish report did not state or imply that “listed” people could not pass through customs either way.  Secondly, the Danish report was made in 1997, which is neither 1995 or 1998 (when this case was before the Tribunal).  Assuming that it is still valid, and accepting the applicant’s detention on his last return from overseas in March 1995, it would suggest at least a possibility that he is on a list and that he would be detained if returned now.  If so, it would be likely to be for a Convention-related reason. A possible 2 or 3 day detention may be sufficient to establish a fear of persecution but that question is primarily for the Tribunal.  If accompanied by torture or brutality, it may very well do so.  Thirdly, there is no suggestion that the applicant’s departures from Sri Lanka in 1993, 1994 and 1995 were illegal.  In addition, he may be of interest to the authorities when he is in or entering Sri Lanka but not when he is leaving the country.  Fifthly, the fact that his airport detention was at the end of his employment travels and that his release may have been secured, as he alleged, by a 25,000 rupee bribe paid by his employer on condition that he leave the country, which he did, or may even have been allowed because there was no evidence to justify his continued detention, were not considered by the Tribunal as alternative factors tending to show that he was at risk or at least weighed in the balance required to be drawn.

13. After the longest claimed period of detention in September/October 1994, the applicant said that he left the country for Madras in a further vain effort to get a false passport.  He was told that he was being held on suspicion that he was carrying goods for the Tigers.  The Tribunal concluded that this detention did not occur.  Its reasons were that he was not charged under the Emergency Regulations or the Prevention of Terrorism Act and that he was given a visa to India on 7 October 1994.  It was found to be “not plausible” that the visa would have been issued to him in detention and the fact of its issue was considered to be further evidence that he is not of interest to the authorities.

14. Assuming that these conclusions were open on the available evidence, they are certainly not the only possible conclusions.  Before they could be drawn, the Tribunal was bound to consider and raise with the applicant the alternative scenarios.  There are several reasons why he may not have been charged.  For example, there may have been insufficient evidence to charge him.  Whatever could be proved may not have been an offence.  Secondly, logic and orderly conduct are not always the operative criteria in emergency or civil war situations.  Thirdly, unless exit visas are required from Sri Lanka which the Tribunal did not find, visas are usually issued by the country being visited, not the country of origin.  India would have no reason to deny the applicant a visa because the Sri Lankan authorities had an interest in him.  It might not even know that they did.  The issue of the visa while he was in detention could have been in response to an application made by someone else on his behalf or there may be a mistake in the date of his release or the issue date.  If his release was obtained by a bribe and was made on condition of his leaving the country, the bribe might have included the arrangement and supply of a visa.  Not one of these possibilities appears to have been considered by the Tribunal at any stage.  And of course, there may well be records of the detention itself.

15. In my view the Tribunal failed to make findings of fact to substantiate its rejection of the possibility that the applicant is of interest to the Sri Lankan authorities such as to create grounds for a Convention-based fear of persecution.  It found inconsistencies which either did not exist or which it failed to identify and put to the applicant for explanation.  It also failed to explain or justify its findings that the applicant was involved in “some business” and that his claims of travelling outside Sri Lanka in pursuit of false documents to travel elsewhere were not creditable and were fabricated.

16. The Tribunal’s final conclusion was that the applicant did not have a well founded fear of persecution if he were returned to Colombo.  Accepting all the factual findings of the Tribunal despite the inadequacy of its reasoning, the relevant facts in this connection were:

    1.The applicant is not from Colombo originally and did not attend school there.

    2.Between 1983 and 1993 (when he was aged 15-25), he lived with his family in Jaffna or Tamil Nadu in India.

    3.From June 1993 he was a salesman travelling around Sri Lanka and overseas.

    4.He left Sri Lanka for the last time in June 1995.

1. Thus on the Tribunal’s findings, the only connection the applicant had with Colombo was between about February 1993 and June 1995 when he was located there for his work although he was regularly “on the road” both within and outside the country.  In my opinion, this evidence does not provide a substantive basis for the Tribunal to consider only his chances of persecution in Colombo.   The evidence and the decision in Randhawa v Minister for Immigration and Ethnic Affairs [1992] 52 FCR 437 required a consideration of possible persecution in Sri Lanka as a whole, including Jaffna now under the control of government forces, and of the reasonableness of relocation to Colombo. The Tribunal accepted that he had been detained in Colombo. There was ample even abundant evidence before the Tribunal, which it accepted, of human rights abuses against Tamils in Jaffna since government forces reassumed control. It accepted that he faced further detention if he was returned.

2. In my opinion the Tribunal misconstrued or wrongly interpreted the law in relation to persecution, and misapplied the facts to the law in these respects. For these and the earlier expressed reasons in relation to the fact finding exercise, the Tribunal erred in law by not providing the hearing and determination required by the Migration Act 1958. The decision of the Tribunal is set aside. The matter is remitted to the Tribunal for hearing by a different member. The respondent will pay the applicant’s costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marcus Einfeld  AO.

Associate:

Dated:             31 May 1999

Counsel for the Applicant:	Mr R. Beech-Jones
Solicitor for the Applicant:	Nan Solicitors
Counsel for the Respondent:	Mr P. S. Braham
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	25 June 1998
Date of Judgment:	31 May 1999