Navaratnam v Minister for Immigration & Multicultural Affairs

[2002] FCA 651

FEDERAL COURT OF AUSTRALIA

Navaratnam v Minister for Immigration & Multicultural Affairs [2002] FCA 651

JOSEPH JEYANATHAN NAVARATNAM & ANOR v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 222 of 2001

WHITLAM J
24 MAY 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 222 of 2001

BETWEEN:

JOSEPH JEYANATHAN NAVARATNAM
FIRST APPLICANT

ANTANET THAVASEELY NAVARATNAM
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

WHITLAM J

DATE OF ORDER:

24 MAY 2002

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicants are to pay the respondent’s 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	N 222 of 2001

BETWEEN:

JOSEPH JEYANATHAN NAVARATNAM
FIRST APPLICANT

ANTANETTHAVASEELY NAVARATNAM
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:	WHITLAM J
DATE:	24 MAY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an order of review in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 24 January 2001 affirming the decision not to grant protection visas to the applicants.

2. The applicants, who are husband and wife, are citizens of Sri Lanka.  They arrived in Australia on 24 July 1997.  On 4 September 1997 the first applicant lodged his application for a protection visa, in which he included the second applicant as a member of his family unit.  However, she subsequently lodged her own application for a protection visa on 17 September 1997.  On 29 January 1998 a delegate of the respondent (“the Minister”) refused to grant them protection visas, and they applied for review by the Tribunal.

3. The statement prepared by the Tribunal under s 430(1) of the Migration Act 1958 (“the Act”) is a model of clarity.  The first applicant was referred to as “the applicant” in that statement because only he made specific claims under the Refugees Convention.

4. The Tribunal referred to the first applicant’s claims and the evidence before it at paragraphs 6-71 of its statement.  After setting out his personal and travel details, the Tribunal said:

   “11.     The applicant claims to have a well-founded fear of persecution by the Sri Lankan authorities on the bases of his race (Tamil) and a political opinion imputed to him by those authorities.

   12.       In essence, the applicant claims to fear persecution by the Sri Lankan authorities by reason of political opinion, which has been imputed to him on the bases that: First, that he accepted funds from Tamils outside Jaffna and from overseas which he then transferred from his bank account to the recipients in Jaffna and, in the course of this activity, he was associated with Catholic priests who were arrested for taking money and goods into Jaffna and who were thought by the authorities to have been assisting the Liberation Tigers of Tamil Eelam (LTTE); and second, that he was suspected of providing shelter or of harbouring LTTE members in his home in Colombo.

   13.       The applicant’s first adviser also claimed that the applicant feared persecution on the grounds of nationality and/or race, that as a Tamil he was suspected of supporting the LTTE when he undertook to transfer money to other Tamils resident in Jaffna.  In addition, the applicant made claims to have had to pay a bribe at the airport in order to effect his departure from Sri Lanka.

   14.       The applicant provided details of his claims on several occasions.  There are some significant discrepancies in those details at different points in the refugee determination process, one of which was not raised at all until the written submissions made to the Tribunal prior to the hearing, which I set out below.”

   The material submitted by and on behalf of the applicants was then described, and the Tribunal continued:

   “16.     The applicant claimed that at some point in 1985 he began to assist Tamils in both Jaffna and Colombo to send money to their relatives: From Jaffna to Colombo, and from both Colombo and overseas to Jaffna.  The applicant then maintained a bank account in Jaffna, where he lived and worked from 1983 to 1990, and that a brother of his maintained a bank account in Colombo and that the funds were deposited in either of these accounts and transferred accordingly.  The applicant claimed that while he was in Jaffna he became acquainted with Fr Jebanesan who was involved in taking food relief supplies to Jaffna, and that later, after he moved to Colombo, he offered to assist Fr Jebanesan by transferring money or by giving money to the priest to transport to Jaffna.

   17.       The applicant claimed that Fr Jebanesan was at some point arrested on a trip to Jaffna, when he was found to be in possession of a large sum of money and some goods, together with the applicant’s name and address.  The applicant claimed that as a result of this he too was arrested and held overnight on suspicion that he was providing money to the LTTE.  He claimed that he had been taken into custody on a number of occasions but was released the same day.  He claimed that he was released after the overnight detention, without charge, by the intercession of a nun, Sr Barbara, and by the payment of a bribe.  The applicant claimed that he and his wife travelled to Denmark shortly after his release, to visit his wife’s sister.

   18.       The applicant claimed that for the period from his return from Denmark to the end of 1996 he had no significant problems with the police other than that they would come to the house to check his household registration (a form of registration of all occupants of households in Colombo, mandatory for all residents).  The applicant perceived this checking to be harassment.  The applicant claimed that in January 1997 on two occasions while he was at work, a young man visited his wife at home claimed to have been a member of the LTTE and asking for help.  This person was not known to the applicant or his wife but he claimed to have known a nephew-in-law of the applicant’s wife, that nephew having also been in the LTTE and having died in November 1993 in a military confrontation.

   19.       The applicant claimed that in mid-March 1997 the police came to the applicant’s house to question him about whether he knew anyone in the LTTE, which the applicant denied.  The police told him to report to the police station the next morning, which the applicant did after having sought advice from Sr Barbara.

   20.       When the applicant reported to the police the next morning, he was abused and mistreated by police, who accused him of knowing a member of the LTTE.  The police paraded before him a young man whom they said was a member of the LTTE and was known to him, which the applicant denied.  The police also showed the applicant a photograph of a woman whom they said had sent the LTTE member to the applicant’s house, whom the applicant identified as his wife’s sister-in-law.  The applicant claimed to have been held for two and a half days until, through a combination of representations from Sr Barbara and the payment of a bribe, he was released without charge.

   21.       The applicant claimed that after his release, he began preparations to leave Sri Lanka, including getting a visa to travel to Australia, leasing his house in Colombo, and selling or giving away most of their household belongings.  He claimed that he was obliged to undertake these activities secretly because he was under surveillance by the police.”

5. The Tribunal next dealt with the “inconsistencies” it had foreshadowed in paragraph 14 under four headings: (1) The Arrest of Catholic Priest(s) in November 1995 or April 1996, (2) Applicant’s Arrest(s) in 1996 (and the Trip to Denmark in May 1996), (3) Applicant’s Arrest(s) in 1997, and (4) Departure from Sri Lanka.  In the course of its observations under the third of those headings, the Tribunal said:

   “41.     At the first DIMA interview, the applicant’s wife identified only one episode of detention, which she said occurred in April 1996 in connection with the arrest of Fr Jebanesan.  She stated that 6 police came to the house on a Saturday afternoon, that her husband was directed to attend the Borella CID office the next day and that when he did he was detained.

   42.       In the written submissions, the applicant’s adviser claimed for the first time that the applicant was accused of harbouring a LTTE member, in conjunction with a ‘young boy’ known to the nephew of the applicant’s wife who had twice visited their house and was later arrested for involvement in LTTE activities in Colombo.  The applicant’s adviser stated that the applicant had raised this issue in his statutory declaration but that ‘there was no opportunity for [the applicant] to elaborate on this matter’.  In fact, the relevant part of the applicant’s statutory declaration states that the police ‘showed photos of some Tiger who they said had come to my house’ (emphasis added).  There is no other reference in the statutory declaration to accusations of harbouring LTTE members, although there are 9 other references in that declaration which explicitly claim that the police interest in him was a suspicion that he was collecting money for the LTTE, and one mention of police suspicion because of ‘Jaffna people staying at my house when they visited Colombo’.”  (Emphasis supplied.)

   Finally, in this section of the Tribunal’s statement, reference was made to other material submitted in support of the first applicant’s claims and to the so-called “independent” evidence.

6. The applicable legal principles were summarised by the Tribunal at paragraphs 72-78.  It set out its findings and the reasons for its decision at paragraphs 79-106.  The Tribunal began by observing:

   “79.     I am not satisfied that the final version of the claims made by the applicant at the hearing was truthful.  There are a number of significant variations in the claims made by the applicant in his protection visa application, at the two DIMA interviews, in the written submissions and at the hearing before me.  Further, the applicant’s explanation for failing to mention, until the hearing, such a fundamental claim as the approach by the LTTE member is not convincing.  Several of the details provided by the applicant in support of his claims were inherently implausible.  Finally, the applicant’s claims conflict in significant respects with the independent information which was put to him at the hearing.”

7. So far as the first applicant’s claims to have been involved in the transfer of funds to Jaffna and to have been arrested in 1996 were concerned, the Tribunal found:

   “85. … I do not accept that the applicant was ever involved in the transfer of money to Tamils in Jaffna by Fr Jebanesan.  I do not accept that Fr Jebanesan was arrested with material identifying the applicant as a participant in this activity and I do not accept that the applicant was arrested as a consequence of Fr Jebanesan’s arrest in November 1995.

   85.       However I am prepared, despite some reservations, to accept that the applicant was detained overnight in April 1996.  The reason why I am prepared to accept this claim is because, with the exception of the applicant’s unsuccessful attempts to link this detention with the arrest of Fr Jebanesan, the applicant and his wife have consistently claimed that this brief detention took place in April 1996.  Also, the letter dated 19 November 1999 from Fr Sritharan states that the applicant was detained by the police for ‘a few nights’ during the period when Fr Sritharan was regularly visiting the SEDEC office in Colombo, which was during 1996 and 1997, and the letter dated 12 October 1997 from Fr Sritharan states that the applicant endured sufferings in 1996, although he states that it occurred after the trip to Denmark.  Although the evidence is not entirely clear or consistent, I accept that the applicant was detained overnight in April 1996 and that during this detention he was physically mistreated.”  (Emphasis supplied.)

   However, the Tribunal went on to say:

   “87.     I am unable to determine to my satisfaction the reason for this detention.  I am satisfied it was not connected in any way with Fr Jebanesan.  It may have been due to some involvement of the applicant in the money transfer claims which he has made, although the bank account details which he provided are insufficient to settle this issue because there are none from the period when this detention occurred.  I note from the independent information that the LTTE detonated a bomb at the Central Bank in Colombo in January 1996, which triggered widespread searches and random security roundups and cordon-and-search operations for a considerable period of time thereafter.  I am unable, on the state of the information before me, to determine the reason for the applicant’s overnight detention in April 1996.

   88.       However, I am satisfied that the applicant was of no further interest to the Sri Lankan authorities once he was released from this brief detention.  First, he was able to renew his passport in the same month as his release.  Second, he was able to leave Sri Lanka for Denmark and does not claim to have had any difficulties departing.  Third, he made no attempt to seek protection in Denmark, and fourth he returned voluntarily from Denmark, both because, as he stated in the first DIMA interview and at the hearing before me, the situation had ‘relaxed’ after his release from detention.  Fifth, he stated in his statutory declaration that on his return to Sri Lanka, when he was promoted to the Colombo office of his employer, he had no problems with the authorities (until the claimed January 1997 incident, dealt with below), and he made no claims of harassment either during the interviews with the delegate or at the hearing before me.

   89.       Because of the serious inconsistencies in the applicant’s claims, which I have set out at length in the ‘Claims’ section of this decision, I am not prepared to accept the applicant’s claim that he was arrested, or taken to the police station to be questioned, on numerous occasions during 1995 and/or 1996.  However, even if the applicant had been arrested or taken for questioning, I am satisfied that by the time of his release from detention in April 1996 he was no longer of any interest to the authorities, for the reasons which I have set out in the preceding paragraph.”

8. On the issue of the first applicant’s claimed arrest in 1997, the Tribunal found:

   “90.     I do not accept the applicant’s claim to have been arrested and detained for 2 and a half days in March 1997.  I give my reasons for that finding below, but in summary I do not accept the applicant claim because:  First, the applicant has provided sharply conflicting accounts, neither of which I accept, of the reason for this claimed detention; Second, the applicant’s wife was adamant at the first DIMA interview that there was only ever one overnight detention, in April 1996; Third, the most recent explanation for this alleged detention was not raised until after the applicant’s protection visa application had been rejected by the delegate and I do not accept the applicant’s or his wife’s explanations for not having raised this claim earlier; Fourth, the letters from Fr Sritharan mention only one episode of overnight detention, which I have accepted for the reasons given above to relate to the April 1996 detention; Fifth, the applicant experienced no difficulty in departing Sri Lanka legally on documents in his own name some 4 months after the alleged detention; Sixth, the applicant delayed his departure from Sri Lanka for 4 months after his alleged release and 3 months after he obtained his Australian visa and I do not accept, for the reasons given below, that the applicant’s explanation for this delay is consistent with a genuine fear of persecution.”  (Emphasis supplied.)

9. The Tribunal elaborated each of those six reasons and then continued:

   “101.   The contents of the letter from the applicant’s tenant do not, in my opinion, support the applicant’s claim to have been of interest to the authorities at the time of his departure, nor that he faces a real chance of persecution for a Convention reason if he were to return to Sri Lanka now.  That letter merely suggests that the army, in the wake of a serious bombing incident in Colombo, attended the applicant’s house to search the house, which they apparently knew to have been owned by the applicant, were unpleasant to the tenant when the applicant’s absence was explained, and returned twice the next day to conduct further searches.  The independent information which I have consulted indicates that such searches are a common occurrence after serious terrorist incidents in Colombo.  I note that the tenant’s letter refers to an incident in October 1997.  There is nothing to indicate that if the army were interested in the applicant personally, which I do not accept, that interest has persisted beyond October 1997.

   102.     I also note the applicant’s claims to have been subjected to household registration checks in the period after his return to Sri Lanka from Denmark.  I find that the applicant does not face a real chance of persecution in this basis if he were to return to Sri Lanka.  I accept the independent information that such checks are mandated by law and apply to all residents of Colombo, not just Tamils.  I am satisfied that such checks are a legitimate measure for the security forces to undertake, particularly after serious terrorist incidents, to attempt to apprehend LTTE terrorists and to prevent harm to the civilian population.  I am satisfied that such checks are not undertaken for a Convention reason.  I am also satisfied that the level of inconvenience experienced by the applicant during such checks is not serious enough to constitute persecution.

   103.     I find that the applicant’s claim to have been arrested in March 1997 because his name and address were found in the diary of an LTTE member who was arrested is a fabrication made to enhance the applicant’s chances of obtaining favourable review by this Tribunal of his protection visa application.  I do not accept the applicant’s claim to have been arrested in March 1997 and detained for two and a half days.  I do not accept the applicant’s claim to have been approached by the LTTE for help, and to have been suspected by the police to be LTTE sympathisers.

   Departure from Sri Lanka – finding

   104.     For the reasons which I have given above in relation to the applicant’s capacity to leave Sri Lanka on a passport in his own name, in combination with my finding that he was of no interest to the Sri Lankan authorities after his release in April 1996, I find that the applicant was of no adverse interest to the authorities at the time of his departure from Sri Lanka for Australia by reason of his departure from Sri Lanka.  I do not accept that without the bribe paid by the applicant at the airport (to ‘get through’ and to have his bags checked through without delay) he would have been prevented, for a Convention reason, from departing Sri Lanka.”

10. The amended application for an order of review, as filed, purported to be made on several grounds available under s 476(1) of the Act as then in force. However, at the hearing the applicants pursued only the “no evidence” ground under s 476(1)(g) and s 476(4)(b). They did so by challenging “facts” said to have been found by the Tribunal in the second, third and fourth of its reasons for the conclusion in paragraph 90 reproduced at [8] above. It was submitted that the Tribunal based its decision on the “existence of a particular fact and the fact did not exist”: see Minister for Immigration and Multicultural Affairs v Rajamanikkam (2000) 179 ALR 495 at 502 ([21]-[22]) and Minister for Immigration and Multicultural Affairs v Indatissa [2001] FCA 181. The applicants contended that the finding in paragraph 90 of the Tribunal’s reasons is an adverse credibility finding based, in three respects, upon “facts” which were said not to exist. The “facts” were identified as follows:

    ·    that the second applicant said that the first applicant was not arrested after April 1996,

    ·    that the explanation for this alleged detention was not raised until after the delegate’s decision, and

    ·    that the letters from Father Sritharan mention only one episode of overnight detention.

1. The applicants relied particularly on the reason that I have highlighted in paragraph 90 of the Tribunal’s statement, which their solicitor submitted was “blunt and clear”.  He tendered a transcript of part of the second applicant’s interview with the delegate in order to show that that “fact” did not exist.  In fact, the transcript shows that at one point the second applicant did say that her husband was never arrested after April 1996, although she later said that he was arrested in March 1997.  Allowing for the fact that only part of that interview is in evidence, it would appear that the Tribunal was mistaken in its description of what the second applicant said.

2. The solicitor for the applicants so warmed to his task that in his address he also identified the first reason in paragraph 90 as a fact that did not exist. (This allegation was not made in the amended application.) He quarrelled with the description of the first applicant’s accounts as “sharply conflicting”. The material in the so-called “green book” was said not to justify either that finding or any findings as to the other “facts” identified in the amended application. In fact, that material supports what the Tribunal said about the explanation for his alleged arrest being raised late in the piece. Further, as the excerpt reproduced at [7] above shows, the Tribunal dealt quite clearly in paragraph 86 of its statement with the second letter from the Catholic priest in question. But in any event, the applicants adduced no evidence to show that such “facts” did not exist.

3. It is, in my view, completely absurd to suggest that the Tribunal’s decision was based on a finding of what the second applicant said at an interview on 3 December 1997.  Be that as it may, however, the applicants’ case is fatally flawed for other reasons explained in another case where a similar argument was put in respect of “facts” allegedly found by the Tribunal about what was said at a hearing before it.  In Dobari v Minister for Immigration and Multicultural Affairs [2001] FCA 1690 Merkel J, speaking for the Full Court, said:

   “10.The reliance upon the no evidence ground in respect of the appellant’s statements concerning the above matters is misconceived.  The ‘facts’ upon which each of the relevant credibility findings were based were statements made by the appellant, which are not in dispute.  What the appellant disputes is the Tribunal’s interpretation of those statements, having regard to the context in which they were made.

   11.…  The interpretation and views formed by the Tribunal as to the meaning and significance of the statements were reasonably open to it.  Put another way, there was evidence or material that was capable of supporting the particular finding in issue.  In any event even if, contrary to my view, the interpretation and views were erroneous they amounted to error, on a question of fact, arising from an erroneous interpretation of statements that were made (ie a fact that did exist) and not an erroneous interpretation of a statement that was not made (ie a fact that did not exist).”

4. The application will be dismissed with costs.

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

Associate:

Dated:             24 May 2002

Solicitor the applicants:	Mr A N Silva of Dominic David Stamfords
Counsel for the respondent:	J D Smith
Solicitors for the respondent:	Clayton Utz
Date of hearing:	3 August 2001
Date of judgment:	24 May 2002