Nadesan, Nanthakumar v Minister for Immigration & Multicultural Affairs

[1998] FCA 215

NANTHAKUMAR NADESAN v. MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
No. NG 806 of 1997
FED No. 215/98
Number of pages - 10
Migration

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

O'CONNOR J

Migration - appeal from Refugee Review Tribunal ("RRT") decision refusing refugee status - whether failure to refer to and give evaluation of conflicting evidence in reasons for decision a failure to observe procedures required by the Migration Act - whether fear of retaliation by a corrupt pllice officer constitutes persecution -whether RRT required over exacting standard of proof in assessing credibility of applicant

Migration Act 1958 (Cth), ss 418, 420, 423, 424, 425, 430, 476(1)(a), 476(1)(e), 476(2)

Eshetu v Minister for Immigration and Ethnic Affairs (1997) 71 FCR 300, considered

Sun Zhan Qui v Minister for Immigration and Multicultural Affairs (unreported, Full Court, 23 December 1997) considered

Muralidharan v Minister for Immigration and Multicultural Affairs (1996) 62 FCR 402, considered

Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, followed

Brackenrigg v Comcare Australia (1995) 56 FCR 349, considered

SYDNEY, 23 February 1998 (hearing), 12 March 1998 (decision)

#DATE 12:3:1998

Solicitor for the Applicant: L Karp

Counsel for the Respondent: F Backman

Solicitor for the Respondent: A Connor, Australian Government Solicitor

THE COURT ORDERS THAT:

1. The application be dismissed with costs.

Note: settlement and Entry of Orders is dealt with in Order 36 of the Federal Court Rules.

O'CONNOR J

This is an application for the review of a decision pursuant to s 476 of the Migration Act 1958 ("the Migration Act") of a member of the Refugee Review Tribunal ("the Tribunal") dated 4 September 1997 affirming the decision of the delegate of the Minister for Immigration and Multicultural Affairs not to grant a protection visa.

The grounds of the amended application are:

1. that the Tribunal erred in law and failed to observe procedures that were required by the Migration Act by failing to consider information submitted by the applicant to the effect that the applicant was in danger of persecution because of his race and failing to give proper reasons for decision by not referring to and give a written evaluation of conflicting evidence before it;

2. that the Tribunal erred in law, being an error in the application and interpretation of the law, in failing to find that the applicant's fear of retaliation by a corrupt police officer was for reason of his race and a political opinion that had been imputed to him; and

3. that the Tribunal erred in law, being an error in the interpretation of the law, and/or failed to observe the procedures that were required by law to be observed by applying an over exacting standard of proof in assessing the credibility of the applicant.

The applicant seeks an order that the decision under review be set aside. Alternatively the applicant seeks and order that the matter be remitted to a differently constituted Refugee Review Tribunal for reconsideration according to law.

Legislative Context

The relevant provisions of the Migration Act in respect of this application are as follows:

"Secretary to be notified of application for review by Refugee Review Tribunal 418. (1) If an application for review is made to the Refugee Review Tribunal, the Registrar must, as soon as practicable, give the Secretary written notice of the making of the application. (2) The Secretary must, within 10 working days after being notified of the application, give to the Registrar the prescribed number of copies of a statement about the decision under review that: (a) sets out the findings of fact made by the person who made the decision; and (b) refers to the evidence on which those findings were based; and (c) gives the reasons for the decision. (3) The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary's possession or control and is considered by the Secretary to be relevant to the review of the decision. ... Refugee Review Tribunal's way of operating 420. (1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. (2) The Tribunal, in reviewing a decision: (a) is not bound by technicalities, legal forms or rules of evidence; and (b) must act according to substantial justice and the merits of the case. ... Documents to be given to the Refugee Review Tribunal 423. (1) An applicant for review by the Tribunal may give the Registrar: (a) a statutory declaration in relation to any matter of fact that the applicant wishes the Tribunal to consider; and (b) written arguments relating to the issues arising in relation to the decision under review. (2) The Secretary may give the Registrar written argument relating to the issues arising in relation to the decision under review. Review "on the papers" 424. (1) If, after considering the material contained in the documents given to the Registrar under sections 418 and 423, the Tribunal is prepared to make the decision or recommendation on the review that is most favourable to the applicant, the Tribunal may make that decision or recommendation without taking oral evidence. (2) For the purposes of subsection (1), a decision or recommendation made on a review is taken to be the decision or recommendation most favourable to the applicant if there is no other decision or recommendation that: (a) the Tribunal could make; and (b) in the Tribunal's opinion, the applicant would prefer the Tribunal to make. Where review "on the papers" is not available 425. (1) Where section 424 does not apply, the Tribunal: (a) must give the applicant an opportunity to appear before it to give evidence; and (b) may obtain such other evidence as it considers necessary. (2) Subject to paragraph (1)(a), the Tribunal is not required to allow any person to address it orally about the issues arising in relation to the decision under review. ... Refugee Review Tribunal to record its decisions, etc and to notify parties 430. (1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence of any other material on which the findings of fact were based. (2) The Tribunal must give the applicant and the Secretary a copy of the statement prepared under subsection (1) within 14 days after the decision concerned is made. (3) Where the Tribunal has prepared the written statement, the Tribunal must: (a) return to the Secretary any document that the Secretary has provided in relation to the review; and (b) give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based. ... Application for review 476. (1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds: (a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed; ... (e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision; ... (2) The following are not grounds upon which an application may be made under subsection (1): (a) that a breach of the rules of natural justice occurred in connection with the making of the decision; (b) that the decision involved an exercise of power that is so unreasonable that no reasonable person could have so exercised the power."

A criterion for the grant of a protection visa is that Australia has protection obligations in relation to the applicant because he is a refugee in accordance with Article 1A(2) of the Convention, as amended by the Protocol, that is, he is 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."

Factual Background

The applicant is a 22 year old Tamil man from northern Sri Lanka who in February 1997 arrived at an airport in Australia without an entry permit and was detained. The applicant stated that his father and family were generally sympathetic to the pro-Tamil LTTE but did not believe in violence and terrorism. Due to his lack of enthusiasm for the LTTE cause the applicant moved away from his home town of Jaffna to Colombo and it was decided that he should travel to seek protection in a safe country. The applicant tried to find somewhere safe overseas to live but was unsuccessful and he returned to Colombo.

The applicant claims that when a cache of ammunition was found near his residence in Colombo he was arrested, bashed and interrogated for over three months and asked for information about the operations and names of the LTTE. He was released after payment of a bribe by his family and arrangements were made for him to flee Sri Lanka. The applicant came to Australia in early 1997.

The applicant applied to the Department of Immigration and Multicultural Affairs for a protection visa on 25 February 1997. The delegate's decision refusing the application was made on 29 April 1997. The applicant applied for a review of that decision by the Tribunal on 9 May 1997. The application for review was rejected by the Tribunal and his application for protection visa refused on 4 September 1997.

Tribunal's Decision

The Tribunal made the following findings:

In relation to the applicant's evidence/credibility, the Tribunal found some serious inconsistencies and difficulties with what the applicant said in his original statement and evidence given at the hearing and/or subsequently produced by the applicant's advisers and then said:

"The Tribunal is not required to accept uncritically any and all claims made by applicants: ... that although the applicant's account was not entirely fabricated it had been substantially embellished and the Tribunal found itself unable to simply accept the applicant's evidence at face value where it was inconsistent, uncorroborated or otherwise implausible." (Pages 9-10 of Tribunal Decision)

After referring to the political developments and changes of government in Sri Lanka and their approach to the long-running Tamil insurgency the Tribunal made a finding that it was not satisfied that the applicant was treated adversely and differentially by the LTTE for a Convention reason. The applicant gave evidence that he returned to Jaffna in 1992 and lived there without any further incident or threat by the LTTE and that he "managed to build up a good relationship with the LTTE". In all the circumstances the Tribunal was satisfied that the applicant did not face a chance of persecution by the LTTE for a Convention reason on return to Sri Lanka.

In relation to the applicant's claims concerning detention, questioning and physical mistreatment by the Sri Lankan security forces in Colombo, the Tribunal accepted that the applicant was arrested in mid 1996, but noted that the security forces did not target the applicant but arrested him on suspicion when it became clear that he had lied about not knowing another person who was being sought in relation to an arms cache. Under the circumstances, the Tribunal was satisfied that the arrest was not of itself persecutory and nor was it for a Convention reason. The Tribunal concluded:

"Given the embellishments already referred to and the general difficulties with the evidence in this case, the Tribunal is not satisfied that in 1996 the applicant was in fact held for a period of three months or that he was seriously mistreated while in detention so as to amount to persecution." (Page 13 of Tribunal Decision)

The Tribunal did not accept that the applicant had been specifically targeted by the Sri Lankan authorities. The Tribunal was satisfied that the applicant was not specifically regarded as an LTTE member or supporter and that he does not face a real chance of sustained or systemic harm or other treatment which would amount to persecution for a Convention reason.

In relation to the applicant's claim that he believed he would be killed because he had left by bribing an army officer who would (to cover up his crime) kill the applicant if he returned, the Tribunal noted that the applicant had not himself spoken to the person bribed and had heard of the army officer's comments from his mother. The Tribunal also found the applicant's evidence about his release and subsequent departure from Sri Lanka unconvincing and unsatisfactory. However, the Tribunal accepted that on return to Sri Lanka the applicant might be in danger from the person bribed because that person would not want a witness to his bribe-taking. However the Tribunal concluded it did not necessarily follow that this would amount to persecution for a Convention reason. The Tribunal stated that the motivation of the persecutor is the critical question and that the motivation of the bribed officer would be to conceal his own criminal actions and to protect himself from those actions rather than motivation by his or the applicant's actual or imputed political opinion.

The Tribunal concluded:

"Having regard to the totality of the applicant's circumstances and having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations ..." (Page 15 of Tribunal Decision).

Submissions of the Parties

In relation to the first ground of appeal, the applicant made submissions concerning the obligation on the Tribunal concerning information supplied pursuant to s 424(1) of the Migration Act and how this section inter-relates with subss 418 and 423. The question of how these sections are inter-related and how they in turn relate to ss 425 and 430 of the Migration Act it was submitted is one of statutory construction and could be looked at in a number of ways:

Firstly, the duty to consider material under s 424 continues and combines with the requirement of s 425(1) and that together with the requirement of s 430 creates an obligation in the decision maker to consider all the evidence in the making of the decision.

Secondly that sections of the Migration Act which govern the conduct of the Tribunal's business do not constitute a code and that s 420 of the Migration Act has substantive operation as a matter of law (citing Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 per Davies and Burchett JJ). It was also submitted that s 420(2)(b) operated as a procedural requirement and connected ss 424 and 425. The result was that all material submitted to the Tribunal together with that obtained during the hearing and by the Tribunal itself pursuant to s 425(1)(b) has to be, as a matter of law, considered by the Tribunal.

Thirdly that acting "in accordance with substantial justice and the merits of the case" necessarily means that the Tribunal should give consideration to all information before it and that evidence covered by s 424(1) is to be given genuine and realistic consideration and the Court may look behind the Tribunal statements as to its procedure and the law it seeks to apply to its conduct and to consider whether the necessary law and procedures have been complied with in reality.

At page 8 of the decision the Tribunal stated that:

"All the evidence and submissions were taken into consideration by the Tribunal in reaching its decision."

There were on the Tribunal file a number of documents which had been exhibited through an affidavit filed by the applicant. The Tribunal also had its own documents. The applicant made a submission that although the Tribunal had these documents it utilised its own documents in the decision but neither referred to nor cited the applicant's documents provided by the applicant in relation a particular finding as to ethnicity. To so do amounts to a legal error because the nature of the documents supplied by the applicant was to directly to contradict the information relied on by the Tribunal in a fundamental aspect of the claim which was the issue of the safety of Tamils in Colombo and failure to refer to them as to disregard them.

This was manifestly unreasonable and so was a breach of s 420 of the Migration Act (citing Sun Zhan Qui v Minister for Immigration and Multicultural Affairs (unreported, FCA, Full Court NG 398/97, 23 December 1997)).

The respondent in these proceedings however submitted that although the Tribunal is bound to give due consideration to all the evidence before it the cumulative effect of the sections which impose obligations which were referred to by the applicant do not give rise to that obligation. The respondent submitted that the Tribunal did in fact consider all the information that was before it including documentary material provided to the Tribunal by the applicant because at both pages 3 and 8 of the decision the Tribunal said that it had taken into account evidence, claims and submissions previously provided by the applicant to the Department and the Tribunal.

The respondent said that it is apparent from the decision itself that the Tribunal dealt comprehensively and at length with the applicant's claims and the evidence both oral and documentary which was before it. It had, in so doing discharged its obligation under s 420(2)(b) of the Migration Act to act according to substantial justice and the merits of the case. The Tribunal, having all the relevant documentation before it, was entitled to make the findings it did concerning the prevailing government response to Tamils in Sri Lanka and the fact that it specifically mentioned some documentary material only by name in the decision does not mean that it did not give due and necessary consideration to other available material. The respondent said that the Tribunal is not required in the discharge of its statutory obligation to deal with every aspect of the evidence nor deal with all matters raised in the proceedings although its reasons must deal with the substantial issues (citing Muralidharan v Minister for Immigration and Multicultural Affairs (1996) 62 FCR 402 at 414)). This was not a case therefore where the decision was manifestly unreasonable.

The applicant however said that the failure to mention documents which are directly relevant to the applicant's contentions as to the general dangers of Tamils in Colombo meant that the Tribunal had failed to expose its reasoning as to a central issue in the case because it had not explained why this material was accorded no weight. It has thus failed to comply with s 430(1)(b) and s 430(1)(d).

In relation to the second ground of appeal, the applicant submitted that the Tribunal also failed in making this decision to look at the ultimate rather than the immediate motivation of the potential persecutor which would involve the question of why a bribe had to be paid in the first place. The applicant had claimed that if he had been returned to Sri Lanka he would be murdered by a corrupt police officer whom the applicant claims was bribed to assist him to escape Sri Lanka. The Tribunal found that the motivation for this action if it occurred would be:

"to conceal his (the officers) own criminal action".

The Tribunal found there was not a sufficient link between the motivation and the harm feared to invoke a Convention reason (Tribunal Decision page 14-15). The applicant in submission said that the Tribunal had in so doing failed to ask the correct legal question and so committed an error of law.

The respondent said that there was no error of law because the Tribunal had to be certain that fear was for a Convention based reason and the inference was clearly available to the Tribunal on the evidence that the threat to the applicant, if it occurred, was so that the fact of taking the bribe would remain concealed and not for reasons of ethnicity.

In relation to the third ground of appeal - an alleged error of law in relation to the discharge of onus of proof, the applicant submitted that the Tribunal erred by drawing adverse inferences as to credibility because of differences in the claims the applicant made in his May 1997 statement and his Departmental interview and Tribunal hearing as to the event in 1990 and 1991. The error was that to require a level of recall and consistency in relation to events six years before was unreasonable and resulted in the standard of proof applied in this particular case being too high. It could also be taken into account as going to the reasonableness of the decision as not to make an allowance for the applicant's age and the fading memory with time is a breach of the requirements of s 420(2)(b) of the Migration Act.

The respondent said that the Tribunal was entitled to make the adverse findings it did as to the applicant's credibility. If adverse findings, which are findings of fact can invoke a breach of s 420(2)(b) of the Migration Act as submitted by the applicant then the submission of the respondent would be that no such breach had occurred here and this was obvious from the decision itself.

Decision

Before dealing with the three grounds of review pressed by the applicant in this case, it is useful to consider the proper role for the court conducting such a review. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 the High Court said that a reviewing court is required to give the language of the decision maker a beneficial construction, without concern for looseness in language, unhappy phrasing or a verbal slip. The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error. These propositions:

"recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. ... any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision". (at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ)

The approach of Kirby J to this task of review is considered at pp 291-293 where his Honour relevantly makes the following observations:

* The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.

* The reviewing judge must be careful to avoid turning an examination of the reasons of the decision-maker into a reconsideration of the merits of the decision where the judge is limited to the usual grounds of judicial review.

* The weight to be given to the material before the decision-maker is reserved to the decision-maker so long as (s)he applies the correct legal test and does not reach a conclusion which is so unreasonable as to authorise review. The decision maker will usually have advantages over the reviewing judge in evaluating evidence and submissions.

In relation to the first ground of appeal the Court was referred to Brackenrigg v Comcare Australia (1995) 56 FCR 335 at 349 where Sheppard J said:

"In the present case the findings of fact upon which the Tribunal relied appear clearly. That is in accordance with the obligation cast on the Tribunal by s 43(2B) of the Act. But what it fails to do is to refer to the evidence upon which those findings were based. Although the obligations to state the findings of fact and the evidence upon which those findings were based are related to the obligation to give reasons, they are independent and separate obligations. Furthermore, there is a real purpose in requiring a tribunal to refer to the evidence upon which its finding of facts are based. This enables a court dealing with an appeal on a question of law from the Tribunal to determine, more confidently than might otherwise be the case, whether or not the findings of fact made by the Tribunal were based upon evidence before it and were thus findings which were open to it to make. If they were not, an error of law would be disclosed."

The submission of the applicant was that the principle requiring a decision maker to find facts and refer to the evidence upon which that finding was based applies here and was disregarded, in that all evidence before the decision maker was not referred to specifically and the inference could be drawn that some evidence was disregarded with no reasons for so doing. This submission, in my view, does not flow from anything said in Brackenrigg.

The statutory provisions (s 430 of the Migration Act, in particular s 430(1)(d)) requires the Tribunal to refer to the evidence or any other material on which the findings of fact were based. In this case the decision maker has done this in general and in particular. However, failure to refer in particular to all of the evidence which might be relevant to the finding of fact in question does not in my view lead to a failure to comply with s 430. The Tribunal stated it had considered all the information before it including the documentary material provided to the Tribunal by the applicant. There is specific reference at a number of pages in the decision to material provided by the applicant. This includes a submission by the applicant's adviser on page 5, a supporting country material submission by the applicant on page 6, a further statement by the applicant dated 15 May on page 6, letters from the Colombo lawyer, the applicant's aunt, his mother and two statutory declarations at page 8 and all of this material was referred to and evaluated by the Tribunal in reaching its decision.

In such a case if, at another part of the decision, the decision maker does not refer expressly by name to documentation provided by the applicant to the Tribunal it does not necessarily give rise to the apprehension that the decision maker has disregarded or not considered material provided by the applicant in coming to the decision that it did, nor is there a legal obligation to refer to every piece of evidence before the decision maker.

I was invited by both parties to read the subject material in order to come to my own view as to whether this particular material provided by the applicant, but not referred to specifically did contain material which was contradictory to that expressly relied on by the decision maker. Having done so I am of the view that while the opinions or conclusions expressed in this material are different from that which is relied by the decision maker in coming to the decision that he did (in particular the Amnesty International report which does paint a more pessimistic picture of human rights abuses than the other material which was available to the decision maker) there is also a great deal of consistency between the material and all the other material specifically mentioned. The Tribunal was in my view entitled to make the finding it did concerning the prevailing government responses to Tamils in Sri Lanka and its failure to mention some documentary material by name or not deal with its contents does not lead to the conclusion that it did not give due and necessary consideration to all of the documentation before it. The applicant did of course not argue that the amount of weight given by the decision maker to material that it did rely on was incorrect because the applicant conceded a conclusion of this kind made by the Court would amount to merits review.

In Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 at 415 Sackville J said, with which Davies and Beazley JJ agreed, that a Tribunal is not required in the discharge of its statutory obligation to deal with every aspect of the evidence nor deal with all matters raised in the proceedings although its reasons must deal with the substantial issues. The Tribunal in this case did address the issue as to whether the applicant had left Sri Lanka because of fear of persecution from either the Sri Lankan government or the LTTE forces or both on the grounds of race and/or imputed political opinion. It dealt with the issue of whether the applicant feared to return to Sri Lanka for that reason and also dealt with the issue as to whether his fears were well founded. It referred to the material before it. Its failure to do so with the particularity pressed on the Court by the applicant does not amount to a failure to comply with its duty under s 420. There is therefore no error of law in relation to the findings as ethnicity.

In relation to the second ground of review I consider that the findings made by the Tribunal that the applicant's fear of retaliation by a corrupt police officer was not for reasons of his race or political opinion were open to the Tribunal and there was no error of law.

In relation to the third ground of review I consider the Tribunal was entitled to make the findings it did as to the applicant's credibility and made no error of law.

The application is dismissed with costs.