Muralidharan, Subramanian v Minister for Immigration and Ethnic Affairs
[1995] FCA 754
•19 SEPTEMBER 1995
CATCHWORDS
ADMINISTRATIVE LAW - judicial review - improper exercise of power - alleged failure to take into account relevant considerations - decision-maker not required expressly to refer to every piece of evidence.
Administrative Decisions (Judicial Review) Act 1977, s 5(1)(e),(2)(b)
Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
SUBRAMANIAN MURALIDHARAN v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS and ANOR
No. NG 293 of 1994
Coram: Whitlam J
Place:Sydney
Date: 19 September 1995
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) NG 293 of 1994
)
GENERAL DIVISION )
SUBRAMANIAN MURALIDHARAN
Applicant
MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
First Respondent
MARTIN TSAMENYI constituting the REFUGEE REVIEW TRIBUNAL
Second Respondent
Coram: Whitlam J
Place: Sydney
Date:19 September 1995
MINUTES OF ORDER
THE COURT ORDERS THAT:
The application be dismissed with costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) NG 293 of 1994
)
GENERAL DIVISION )
SUBRAMANIAN MURALIDHARAN
Applicant
MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
First Respondent
MARTIN TSAMENYI constituting the REFUGEE REVIEW TRIBUNAL
Second Respondent
Coram: Whitlam J
Place: Sydney
Date:19 September 1995
REASONS FOR JUDGMENT
The applicant applies under s 5 of the Administrative Decisions (Judicial Review) Act 1977 to review a decision of the second respondent, the Refugee Review Tribunal ("the Tribunal"). The subject of the application is the decision of the Tribunal made on 19 April 1994 affirming the primary decision of a delegate of the first respondent ("the Minister") that the applicant was not a refugee under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 ("the Refugees Convention") as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 ("the Refugees Protocol").
The applicant is a Tamil who is a citizen of Sri Lanka. He arrived in Australia on 28 December 1989 and lodged an application for refugee status on 18 January 1990. The applicant was interviewed by an officer of the Department of Immigration, Local Government and Ethnic Affairs ("the Department") on 16 October 1991. The initial assessment and recommendation of the Department's case officer was sent on 13 February 1992 to the applicant, who responded by letter dated 5 March 1992 with his comments and further material. On 21 April 1992 the Minister's delegate made the primary decision already mentioned. The applicant applied for a review of that decision on 15 May 1992. The tribunal heard the application on 15 March 1994.
The Refugees Convention as amended by the Refugees Protocol defines a refugee, so far as presently relevant, as 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".
After first explaining the concept of well-founded fear of persecution in the abstract, the Tribunal dealt with the particulars of the applicant's case:
"The bases of the Applicant's claims to refugee status are fully described in his primary application and the application for review. For the purpose of this decision, these reasons may be summarised as follows:
(1) Before the death of the Applicant's father in 1985, he (the Applicant's father) had a dispute with the Government Housing Department in Colombo in relation to the purchase of a house. The house was re-possessed by the government without compensation before the Applicant's father could discharge the mortgage. The
Applicant took over the case when his father died. The Applicant wrote letters to the Prime Minister requesting the return of the house or the payment of compensation. The Applicant alleged that this angered some unknown people in the government. The Applicant received threatening letters asking him to withdraw the case. As a result of this, the Applicant stated that he [sic] is afraid he of being arrested in [sic] he returns to Sri Lanka.
(2) The Applicant, who had lived in Colombo all the time when he was in Sri Lanka, was employed by an Indian company. The Applicant claimed that he received orders from the Janatha Vimurthi Peramuna (JVP) not to work for Indians. The Applicant left Sri Lanka partly because of his fears of the JVP. The JVP (also known as the People's Liberation Front) is a pro-Sinhalese left-wing political movement which was associated with a campaign of violence and brutality between 1988 and 1990 (see Hyndman, Sri Lankan Refugee Status Applications, A report for the NSW Legal Aid Commission, 21 November 1992, p.7). The combined effect of violence perpetrated by the JVP and counter-insurgency measures adopted by the Government between 1987 and 1990, led to gross violations of human rights in the southern regions of Sri Lanka.
(3) The Applicant also claimed that the Tamil National Army (TNA), a clandestine army formed in 1989 with Indian help to combat the Liberation Tigers of Tamil Eelam, wanted to recruit him. The applicant had to pay a bribe of 50000 Rupees to buy his freedom. The Applicant is afraid that he would be arrested and forced to join the TNA if he returns to Sri Lanka.
The Tribunal has carefully considered the Applicant's reasons for claiming refugee status and comes to the conclusion that the Applicant does not have a well-founded fear of persecution for a Convention reason. The reasons for this conclusion are as follows:
The Applicant's claim in relation to the housing dispute is not Convention-related and does not amount to persecution within the Convention. There is no evidence before the Tribunal that the repossession of the Applicant's family house was motivated by a Convention related reason. The Tribunal cannot find any objective evidence to support the Applicant's fear of arrest in relation to this dispute.
The Applicant's fear of the JVP is also not well-founded. The letters the Applicant alleged to have received from the JVP asking him not to work for an Indian company cannot be said to constitute persecution within the Convention. The letter did not curtail the Applicant's fundamental human rights or other basic human rights in any way. In fact, the Applicant continued to work with the same company until
his departure to Australia in December 1989. Even if the letter curtailed the Applicant's fundamental human rights or other basic human rights significantly at that time, independent evidence available to the Tribunal indicates strongly that the JVP is not, at present, capable of posing any threats to the Applicant's life or freedom upon his return to Sri Lanka. According to authoritative sources, by the beginning of 1990 the Sri Lankan Government had succeeded in containing the JVP (see eg Hyndman, Sri Lankan Refugee Status Applications, A report for the NSW Legal Aid Commission, 21 November 1992, p.7). The Keesing Record of World Events (Vol 39 1993) reported that the JVP "was effectively wiped out as a serious threat by ruthless army action in southern areas in late 1989 and early 1990". In the opinion of Asia Watch, after 1989, when the JVP leader Rohana Wijeweera and his principal deputy, Upatissa Gamanayake, were killed in custody by security forces, "JVP activity all but ceased" (Asia Watch, 31 May 1992 p6). In May 1993 the Australian High Commission in Colombo, in a Situation Report on the JVP, also noted that "the reality is that there is now very little, if any, likelihood of the JVP ever emerging again. They went too far and frightened too many people this time for there ever to be an accommodation of any kind reached with them again" (DFAT Cable CL35508 of 24 May 1993).
The Tribunal is aware of recent reports which suggest that the JVP may be re-emerging. In September 1993, Inform, a non-governmental organisation operating in Colombo, reported a possible clandestine reorganisation of the JVP within Sri Lanka (Inform, "Situation Report", September 1993 p10). There have been other reports of JVP activities on University campuses (Immigration Review Board Documentation Centre (Canada), Response to Information Request LKA/3667, 30 April 1993). These reports do not provide any conclusive evidence of the re-emergence of the JVP as an active political force capable of the atrocities it committed between 1988 and 1989.
In relation to the Applicant's claims regarding the TNA, the Tribunal is unable to find any objective reason why the Applicant should be arrested upon his return to Sri Lanka. The Applicant's fear of the TNA is speculative and not well-founded on the evidence.
Based on the Applicant's evidence, the Tribunal finds that the Applicant does not have a well-founded fear of persecution for a Convention reason and, therefore, that he is not in need of international protection."
The application before the Court sets out two grounds, that specified in s 5(1)(e) and another expressed this way: "The respondent failed to give realistic and genuine consideration to the merits of the applicant's case." The provenance of the language used in this second ground appears to be the judgment of Gummow J in Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291. Counsel for the Minister submitted that this was not an independent ground provided for in s 5 and that, although the cases are replete with this expression and others like it, they have been used as convenient labels only for some traditional grounds of judicial review. I accept this submission, although I respectfully agree with Lindgren J that the "failure to give proper, genuine and realistic consideration to the merits" would surely constitute one or more of the grounds referred to in s 5(1): "A" v Minister for Immigration and Ethnic Affairs (No 2) (1994) 37 ALD 435 at 438. As his Honour did in that case, I shall consider the applicant's case simply as one of improper exercise of power. Indeed, counsel for the applicant said in his opening that the "two grounds are, in effect, probably different ways of saying the same thing".
Here the applicant alleges that the improper exercise of power involved failing to take certain relevant considerations into account. Particulars are given of eleven such "considerations" as follows:
"(1)that the applicant was subject to arbitrary arrest and detention in 1983 on the basis of his Tamil ethnicity;
(2)that the applicant's family home was confiscated because of the applicant's family's Tamil ethnicity;
(3)that the applicant's family's home was given to a member of the Sri Lankan parliament without any compensation being paid to the applicant's family;
(4)that the applicant could not safely live in Colombo;
(5)that there was no place in Sri Lanka to which the applicant could safely return;
(6)that the Sri Lankan government's agents are currently arresting, detaining and mistreating Tamils in Colombo without due cause;
(7)that the applicant was subjected to torture and intimidation in 1989 whilst in arbitrary detention;
(8)that the applicant's brother-in-law secured release of the applicant from detention in 1989 by paying a bribe;
(9)that the applicant has legitimate fears of persecution at the hands of anti-Tamil groups should he travel beyond Colombo;
(10)that the applicant and his family are at greatly increased risk of persecution upon return from Australia by reason of the fact of and length of their absence from Sri Lanka; and
(11)that the applicant has been denied and will likely continue to be denied the opportunity to practice [sic] his religion."
Counsel for the applicant does not quibble that the matters set out in paragraphs (1), (2) and (3) of the Tribunal's statement accurately reflect the effect of his client's evidence before the Tribunal. He could hardly do so. A transcript of that hearing was received in evidence. It shows that the applicant had volunteered that he had "three problems", which he described in the order summarized by the Tribunal.
The particulars in paragraph (6) of the application are not now relied on. However, counsel for the applicant submits that the other ten paragraphs deal with significant matters that are not referred to in the Tribunal's statement. It is said, if these matters, viewed either by themselves or in combination with other matters, had been taken into account, the Tribunal might have arrived at a different decision. His
submissions were developed by reference to material in what the Tribunal called the applicant's "primary application", the record of interview on 16 October 1991, the case officer's initial assessment of 13 February 1992 and the applicant's response of 5 March 1992.
The matter in paragraph (1) is said by the applicant's counsel to be relevant to the subjective element of fear. That may be so, but the answer is that the Tribunal was concerned with the objective element.
Paragraphs (2) and (3) were dealt with together by counsel for the applicant. I need hardly pause except to say that these matters were obviously addressed by the Tribunal. After all, the applicant had told the Tribunal that this was his "main" problem. The subject had been canvassed in the case officer's initial assessment and in the applicant's response. The consequence was that the Minister's delegate considerably expanded the draft reasons of the case officer for rejecting the applicant's claim that this housing issue was "in any way Convention related". (See Section C, pars 4, 6, 7 and 8 of the minute of the delegate's decision.)
Next, counsel for the applicant went to paragraph (11) of the particulars. In addition to his claims of fear of persecution on the basis of his ethnicity, the applicant had initially claimed that he was unable to practise his religion in Sri Lanka. This topic had also been addressed in the case officer's initial assessment and the applicant's response. The Minister's delegate had concluded that the applicant's claim could not be regarded "as evidence of persecution on the basis of his religion within Convention
terms". He had added to the draft reasons of the case officer so as to deal with points raised in the applicant's response. (See Section C, par 12 of the delegate's decision.) The application for review lodged on 15 May 1992 has not been tendered. There is no evidence one way or the other whether the applicant wished to have this part of the delegate's decision reviewed by the Tribunal. Certainly he did not say so at the hearing before the Tribunal.
Paragraphs (4), (5), (9) and (10) are said by counsel for the applicant to describe material before the Tribunal that gave rise to the question of "internal flight" which, he said, had not been directly addressed by the Tribunal. This is hardly surprising. The so-called doctrine of "internal flight" is merely a convenient shorthand expression: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 450, 453. The expression was not employed by the applicant in his application, response or evidence. The question whether the applicant and his wife could live safely in Colombo was squarely addressed by the Tribunal in terms of past evidence of both residence and employment in accordance with the approach suggested by a June 1992 report cited in the Hyndman report referred to by the Tribunal. Indeed, the Tribunal considered this matter by reference to the more recent reports cited in its statement.
Finally, counsel for the applicants submits that the matters particularized in paragraphs (7) and (8) had not been considered because the Tribunal said that the applicant, not his brother-in-law, had paid the bribe. The fact is that this was the effect of the applicant's evidence to the Tribunal. In any event, nothing turns on who paid the bribe.
It will be seen, therefore, that I do not accept that, in the context of what transpired on the hearing before the Tribunal, it failed to take this material into account. Each case must be considered in its own factual setting: Wu v Minister for Immigration and Ethnic Affairs (1995) 130 ALR 367 at 374.
The principles governing the ground in s 5(2)(b) were expounded by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-42. There seems to me to be a basic error in the applicant's case. His counsel's submissions confuse taking into account relevant considerations with taking into account particular pieces of evidence: Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225 at 236. To paraphrase what Carr J said in that case, the relevant consideration which the Tribunal was obliged here to take into account was what might happen to the applicant if he returned to Sri Lanka? It is quite clear that the Tribunal did take this consideration into account.
In the present case the primary application comprised 145 pages. The Tribunal is not obliged to record verbatim the material before it, especially where much of it is referred to in the delegate's primary decision that is under review. The Tribunal said that the applicant's reasons for claiming refugee status were "fully described in his primary application and the application for review". It ought not to be assumed that the Tribunal has ignored the burden of those submissions. The absence of any reference in the Tribunal's statement to a specific item of evidence does not necessarily mean that it has not considered that evidence. It is also quite unrealistic to overlook the reliance
placed upon material by the applicant before the Tribunal: Guo Wei Rong v Minister for Immigration, Ethnic Affairs and Ors (unreported, Sackville J, 4 May 1995, p.33).
The "issues arising in relation to the decision under review" by the Tribunal (Migration Act 1958, s166D) will depend upon the applicant's case. As I have said, the application for review is not in evidence. It appears from the transcript of evidence before the Tribunal that nothing was said at the hearing about alleged persecution on the basis of religion. The Tribunal did not deal with such an issue in its statement. However, even if the applicant had maintained such a claim in his application for review, the failure of the Tribunal to take into account such a consideration could not, in my view, have affected its decision. The material before the Minister's delegate on this question (which has been received in evidence) could not possibly admit of any conclusion other than that reached by the delegate for the reasons he gave.
The application will be dismissed with costs.
I certify that this and the preceding nine pages are a true copy of the reasons for judgment herein of the Hon. Justice A.P. Whitlam
Associate:
Date: 19 September 1995
Counsel for the applicant: G.P. Craddock
Solicitor for the applicant: T.A. Murphy, Legal Aid Commission of NSW
Counsel for the first respondent: S.J. Gageler
Solicitor for the first respondent: Australian Government Solicitor
Date of hearing: 12 December 1994
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