Rajadurai v Minister for Immigration and Multicultural Affairs

[2000] FCA 1093

FEDERAL COURT OF AUSTRALIA

Rajadurai v Minister for Immigration & Multicultural Affairs [2000] FCA 1093

MIGRATION – Refugee application – Review of decision of Refugee Review Tribunal – whether the decision of the Tribunal involved an error of law – whether the Tribunal failed to deal with a material issue which was raised on the evidence.

Migration Act 1958 (Cth) s 476(1)

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 referred to

JORDAN SUSILAN RAJADURAI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 393 OF 2000

MATHEWS J
9 AUGUST 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 393 OF 2000

BETWEEN:	JORDAN SUSILAN RAJADURAI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MATHEWS J
DATE OF ORDER:	9 AUGUST 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The application is allowed.

2.   The decision of the Refugee Review Tribunal is set aside and the matter remitted to the Refugee Review Tribunal to be reconsidered according to law.

3.   The respondent is to pay the applicant’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 393 OF 2000

BETWEEN:	JORDAN SUSILAN RAJADURAI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MATHEWS J
DATE:	9 AUGUST 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant Mr Rajadurai seeks judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) dated 29 March 2000 in which the Tribunal affirmed a decision of the respondent’s delegate to refuse Mr Rajadurai’s application for a protection visa. 

2. In order to be eligible for a protection visa an applicant must meet the criteria set out in s 36(2) of the Migration Act 1958 (Cth) (“the Act”) and subclass 866 in Sch 2 to the Migration Regulations 1994. Both provisions require that the applicant for a protection visa be a person to whom Australia has protection obligations under the Refugees convention as amended by the Refugees Protocol (“the Convention”). Article 1 of the Convention defines a “refugee” as any person who

   “… owing to a 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 …”.

3. Mr Rajadurai says that he has a well-founded fear of persecution for reason of his imputed political opinion.

   BACKGROUND

4. Mr Rajadurai is a Tamil and a citizen of Sri Lanka.  He was born on 19 May 1965.  His education included study at two colleges in the United States which he attended between 1985 and 1992.  Between 1994 and his departure from Sri Lanka in March 1997 he was employed in his own business as a “supplier of items”. 

5. On 31 March 1997 Mr Rajadurai arrived in Australia from Sri Lanka, using a Sri Lankan passport in his own name.  On 13 May 1997 he applied for a protection visa.  The application was accompanied by a statutory declaration made by Mr Rajadurai and also by extensive documentation including country information which supported various aspects of his claim.

6. In his statutory declaration Mr Rajadurai gave a detailed description of the events which ultimately led to his departure from Sri Lanka.  By way of background, Mr Rajadurai, whilst being a Tamil, is not in favour of a separate state within Sri Lanka, this being the primary aim of the opposition guerilla group, the Liberation Tigers of Tamil Eelam (LTTE). 

7. Between 1994 and 1996 Mr Rajadurai’s business took him to the Eastern Province of Sri Lanka, sometimes for extended periods.  In late 1995 he secured a valuable contract to carry out repairs to a building at the Eastern University.  For that purpose he lived at Batticaloa in the Eastern Province.  On two occasions in October 1995 Mr Rajadurai was approached at Batticaloa by men who said they were members of the LTTE and asked him to donate money for their cause.  He refused.  Towards the end of October he was forced at gun-point into a vehicle where he was blind-folded and driven for some distance.  His destination, as it transpired, was an LTTE camp where Mr Rajadurai was required, for several days, to do very heavy work digging bunkers.  After a few days he was taken before the group’s leader who gave him the choice between continuing to work at the camp or returning to his business and agreeing to pay five percent of his income to the LTTE.  Mr Rajadurai not surprisingly chose the latter.

8. In November 1995 Mr Rajadurai’s work with the university came to an end and he received full payment for it.  At about that time he was visited by two LTTE members who again blind-folded him and drove him back to the LTTE camp where he spoke to the same leader as previously.  He told the leader that he was prepared to pay five percent of his payment but that he would shortly be leaving Batticaloa and returning to Colombo.  The leader demanded that he allow three LTTE members to accompany him to Colombo, thereby providing a cover for them at the various checkpoints they would need to pass. (The Singhalese security forces conducted regular checks of travellers on the road between Batticaloa and Colombo).  The leader threatened to kill Mr Rajadurai’s family unless he complied with this request.

9. The next day Mr Rajadurai and three LTTE members left for Colombo.  They had to pass through numerous checkpoints, at one of which they were closely interrogated.  Mr Rajadurai told the inspectors that his companions were his employees who were returning to Colombo to find work.

10. After this episode Mr Rajadurai continued working in his business from Colombo.  He travelled to Batticaloa on a few occasions, but the LTTE made no further demands of him.

11. In October 1996 Mr Rajadurai was arrested at his office by several policemen who took him to the local police station.  There he was asked to identify one of the three LTTE members who had accompanied him to Colombo.  At first Mr Rajadurai denied knowing the man.  However after being subjected to a series of assaults, he eventually gave a full account of his involvement with the LTTE during the previous year.  During all this time he was repeatedly assaulted and beaten and had his head pushed into the bottom of a dirty toilet bowl.

12. Mr Rajadurai was kept in custody until late November in inadequate and degrading conditions.  Towards the end of that time he was taken before a court and was then released on condition that he report to the police each week.

13. The first time that Mr Rajadurai reported to the police two Criminal Investigation Division (CID) officers took him to a separate room and asked him to give a full account of his involvement with the LTTE.  This he did.  The CID officers were polite and apparently sympathetic.  They asked if he would accompany them to Batticaloa and identify the men who had harassed and mistreated him.  Mr Rajadurai was afraid, but the CID officers told him not to worry, that they would protect him.

14. Nothing further happened at that time.  But in January 1997 four CID officers came to Mr Rajadurai’s home and asked him to accompany them to the Eastern Province and help them identify LTTE members.  At first he refused.  They asked him why he was refusing if he was not linked with the LTTE, and insisted that he should go with them.  If he refused, they said, they could take him forcibly.

15. Immediately after this incident Mr Rajadurai left his home and went into hiding.  He obtained a visitor’s visa to Australia where he came on 31 March 1997.  His statutory declaration concluded with the following paragraph:

    “I fear that if I return to Sri Lanka I will be put into the Police cell again, tortured, harassed for not obliging to their request and travel to the East to identify LTTE members.  I am also afraid that the Sri Lankan authorities would have now concluded that I was linked with the LTTE, although I was compelled by the LTTE to carry out their orders.  I am afraid that they will arrest me and persecute me.  Therefore I apply to the Australian government to protect my life.”

16. On 28 February 1998 the respondent’s delegate refused Mr Rajadurai’s application for a protection visa.  On 11 March 1998 he applied to the Tribunal for review of the delegate’s decision.  More than a year later, on 12 April 1999, Mr Rajadurai wrote to the Tribunal seeking to have his case expedited.  In due course a hearing was set for 19 August 1999 on which date Mr Rajadurai appeared and gave evidence before the Tribunal.

    THE TRIBUNAL’S DECISION

17. The Tribunal gave its decision on 29 March 2000.  As mentioned, it affirmed the delegate’s decision to refuse Mr Rajadurai’s application for a protection visa.  The Tribunal accepted the truth and accuracy of Mr Rajadurai’s account of the events which preceded his departure from Sri Lanka.  It found that, in the light of the fact that no further extortion attempts had been made by the LTTE, Mr Rajadurai was not at risk of extortion in the future.  As to LTTE reprisals in the event of Mr Rajadurai assisting the police as requested, the Tribunal made the following observations:

    “While the applicant might have feared LTTE reprisals, there is no evidence that he would not have been able to receive police protection as they had undertaken.  Also, the police use of disguise such as balaclavas for informants is well-known: “Civilian ordeal – Tiger bomb in Batticaloa town”. Sri Lanka Monitor, August 1998 (CX32442).  Should he have chosen to identify LTTE members in a police line-up it is unlikely that his identity would become known to the movement.  Moreover, state protection would be available to him.  Any fear of LTTE retribution he might have is not well-founded.”

18. The Tribunal accepted that Mr Rajadurai was mistreated by police when he was first taken into detention October 1996.  It went on to refer to a number of items of country information, one of which was dated 1 February 2000 (thus post-dating the Tribunal hearing).  From this material, the Tribunal reached the following conclusions:

    “From this, it is apparent that while mistreatment in detention continues, it is not condoned by the government, which has strongly indicated that it is willing to provide protection from this form of persecution.  The state neither condones such action, nor is it powerless to prevent it.  The chance that the applicant would be mistreated in detention is remote, and if it was to occur the applicant would have recourse to the state’s protection.”

19. The Tribunal went on to discuss whether Mr Rajadurai might be targeted by authorities on account of his Tamil ethnicity.  It concluded that the chance of his detention on this account was remote and that he therefore had no well-founded fear of persecution for reason of his ethnicity. 

20. Finally the Tribunal discussed the possibility of police reprisals:

    “The applicant has also claimed that he fears police reprisals for not having acceded to their request that he act as an informer.  I have accepted that he was charged, but have noted that he was released soon after his court appearance.  This would imply that the police and the court did not regard him as an LTTE supporter, and the police appeared to be sympathetic to his plight.  While he may not have acquiesced to the police request to assist them three years ago, I cannot accept that this would precipitate police reprisals on his return.  From his evidence it is clear that the police did not regard him as an LTTE sympathiser.  As for the question of his having not complied to his reporting conditions, DFAT advised in Cable CL 34946 of 15 December 1992 (CX1714) that

    ‘A person who has broken reporting conditions should receive attention from the police on his or her return. … The fact that they left legally indicates that the circumstances of their detention were not of sufficient significance for them to be too concerned about being able to clear up the situation before they return.  Much has changed for the better here in terms of resumption of the rule of law …’

    While the Tribunal has no later evidence on this issue before it, it infers from the DFAT account of the present government’s commitment to the improvement of human rights (CX 39683 above) that the applicant’s treatment by the police on his return, if indeed the police continue to have any interest in him at all, would not amount to persecution in the Convention sense.  If there is any further police interest in him it would not be for a Convention reason.  Any punishment he might be liable to on return would be for having breached a law of general application.”

    THE APPLICATION TO THIS COURT

21. The application to this Court, dated 19 April 2000, raised two grounds:

    1.That the Tribunal failed to observe procedures required by the Act to be observed in connection with the making of the decision, this being a ground of review under s 476(1)(a) of the Act; and

    2.That the decision involved an error of law, being a ground of review under s 476(1)(e) of the Act.

22. At the hearing of the application Mr Rajadurai was, by leave, represented by his brother who is a law student at the University of Technology, Sydney.  He pointed out that the hearing before the Tribunal took place on 19 August 1999 yet the Tribunal’s decision was not issued until some seven months later, in March 2000.  Much had changed in Sri Lanka in the meantime, he submitted, and the RRT in fairness should have sought further country information from the applicant.

23. In fact the Tribunal referred in its decision to country information which post-dated the hearing, namely a DFAT report dated 1 February 2000 which reported that the current government is making “substantial and positive moves” to protect detainees held under security legislation. Mr Rajadurai, did not, as I understood it, object to the Tribunal’s use of that report. However he submitted that there were other reports to contrary effect which the applicant could have made available to the Tribunal had he been asked. This operated unfairly to the applicant, Mr Rajadurai urged, and was a breach of the procedures required by s 420(1) of the Act, and thus a ground of review under s 476(1)(a).

24. It is now clearly established that s 420 does not establish “procedures”, the non-compliance with which will constitute a ground of review under  476(1)(a).  (See Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577).

25. The ground of review under s 476(1)(a) cannot be made out.

26. I turn to the ground of review under s 476(1)(e), namely 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 as to the facts as found by the Tribunal.

27. It is well established that a failure on the part of the Tribunal to deal with a material issue which is raised on the evidence before it constitutes an error of law.  In my view the Tribunal fell into such an error in this case.  This is a small point, albeit a crucial one, and can be stated shortly.

28. The Tribunal dealt with various bases upon which Mr Rajadurai might fear persecution in Sri Lanka (including some which were not raised by him) and rejected all of them.  However it failed, in my view, to deal with the principal basis upon which Mr Rajadurai said that he feared persecution on the part of the Sri Lankan authorities.  This was that, by reason of his having chosen to leave the country (thus, incidentally breaching his reporting conditions) instead of remaining and assisting the authorities against the LTTE, he would now be categorised by the authorities as an LTTE supporter with the result that they would arrest and persecute him on his return.  This is precisely the matter that was raised by Mr Rajadurai in the statutory declaration which accompanied his visa application (see passage quoted in para [15] above).  As to this, the Tribunal said in its decision that:

    “while he (Mr Rajadurai) may not have acquiesced to the police request to assist them three years ago, I cannot accept that this would precipitate police reprisals on his return.  From his evidence it is clear that the police did not regard him as an LTTE sympathiser”.

29. The Tribunal then went on to deal with Mr Rajadurai’s breach of his reporting conditions, which might render him liable to punishment on return for having breached a law of general application.  This, it found, would not amount to persecution in the Convention sense. 

30. The problem with this part of the Tribunal’s decision is that Mr Rajadurai did much more than “not acquiesce” to the police request for assistance. He took the very extreme step of leaving the country. Nor is it correct to say that the police clearly did not regard him as an LTTE sympathiser. During his final encounter with the CID officers, in January 1997, they queried why he was not prepared to assist them if he was not an LTTE sympathiser. Mr Rajadurai’s fear, as expressed in his statutory declaration, is that, by leaving the country he confirmed the authorities’ view that he was an LTTE sympathiser. This was central to his claim that he feared persecution were he to return. The Tribunal failed to deal with this issue. This amounted to an error of law under s 476(1)(e) of the Act.

31. The respondent seeks to rely upon the Tribunal’s finding that the chance that the applicant would be mistreated in detention “is remote”.  However I have great difficulty in understanding the Tribunal’s reasoning in this aspect of its decision.  The Tribunal accepted that Mr Rajadurai had been mistreated by the police whilst in detention and commented that such ill-treatment has been well-documented by various human rights groups.  It commented that over the last two years positive moves have been made in this area.  It then proceeded to make the conclusion quoted in para [18] above.  This conclusion is however self-contradictory.  So long as mistreatment in detention continues, which was apparently accepted by the Tribunal, the State must, of necessity, be powerless to prevent it.  The Tribunal’s conclusion, namely that “the chance that the applicant would be mistreated in detention is remote, and if it was to occur the applicant would have recourse to the State’s protection” is almost ludicrous.  How could he avail himself of such recourse whilst in detention?  If, in this passage, the Tribunal is purporting to find that Mr Rajadurai’s fear of persecution in Sri Lanka is not well-founded, it is inadequate for that purpose.

32. For the reasons given I would allow the application and remit the matter to the Tribunal for re-hearing before a differently constituted Tribunal.  The respondent is to pay the applicant’s costs.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mathews.

Associate:

Dated:             9 August 2000

Representative of the Applicant:	E Rajadurai
Counsel for the Respondent:	T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	28 July 2000
Date of Judgment:	9 August 2000