Rajasundaram v Minister for Immigration and Multicultural Affairs

[1998] FCA 565

VELUMYLUM RAJASUNDARAM v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
No. NG1108 of 1997
FED No. 564/98
Number of pages - 7
Migration Law

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

WILCOX J

Migration Law - Refugee application - Challenge to decision of Refugee Review Tribunal - Applicant Sri Lankan citizen of Tamil ethnicity - Claim of harassment by government authorities because of suspected financial support of LTTE - Three detention incidents claimed by applicant - Tribunal disbelieved claim concerning first incident - Tribunal accepted second and third detention incidents occurred but thought applicant may have exaggerated the physical mistreatment he had received - Tribunal found applicant had given money to LTTE and that government authorities suspected, but had no proof of, this - Failure of Tribunal to take account of the possibility of physical mistreatment and of the authorities' suspicions of payments.

Migration Act 1958, ss 420 and 476

SYDNEY, 14 May 1998 (hearing), 29 May 1998 (decision)

#DATE 29:5:1998

Appearances

Counsel for the Applicant: R Beech-Jones

Solicitor for the Applicant: Maya Nanayakkara

Counsel for the Respondent: T Reilly

Solicitor for the Respondent: Australian Government Solicitor

THE COURT ORDERS THAT:

1. The decision of the Refugee Review Tribunal made on 26 November 1997 be set aside.

2. The application of the applicant, Velumylum Rajasundaram, for a protection visa be remitted to the Refugee Review Tribunal to be reheard and determined according to law.

3. The respondent, the Minister for Immigration and Multicultural Affairs, pay the applicant's costs of this proceeding.

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

WILCOX J

This is an application to review a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant a protection visa to the applicant, Velumylum Rajasundaram. The Tribunal was not satisfied Mr Rajasundaram was a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.

THE FACTS

Mr Rajasundaram is a Sri Lankan citizen of Tamil ethnicity. At the time of his arrival in Australia, on 31 July 1997, he was aged 55 years. Mr Rajasundaram was born, and grew up, at Valvettiturai in the Tamil-dominated Jaffna peninsula at the north of the country. He married in 1967 and apparently now has adult children. At some time in the 1970's (possibly 1977) Mr Rajasundaram went to work in Saudi Arabia. He continued to work in that country until about 1996, although with periodical holidays at home.

Mr Rajasundaram claimed his family experienced difficulties because of the civil war between the Liberation Tigers of Tamil Elan ("the LTTE") and the Sri Lankan government and his house was destroyed by the Indian Peace Keeping Force in 1989; so his family moved to Colombo. However, he said, his son was arrested in Colombo in 1991 so he moved his family to India and, eventually, to Saudi Arabia. He said his family returned to Sri Lanka in 1995 and took up residence at Trincomalee in the eastern province of Sri Lanka. He joined them in 1996 when his Saudi Arabian work contract was terminated. Mr Rajasundaram travelled to Australia without his family.

Mr Rajasundaram was interviewed at Sydney airport on the occasion of his arrival in Australia. He claimed to have provided unwilling financial support to the LTTE since 1984. After the interview, he completed an application for refugee status. In that application he said: "Every time I was on vacation LTTE contacted me and forced me to support them with money which I did".

Both in the interview and on the application form, Mr Rajasundaram claimed harassment by government officials, commencing with an incident at Habarana in January 1997 when he was detained at a government checkpoint, while travelling from Trincomalee to Colombo, held for three days and deprived of the money he was carrying.

At the Tribunal hearing Mr Rajasundaram said he returned to Sri Lanka from Saudi Arabia in June 1996 and was first arrested in September 1996 in Trincomalee. He was detained by the army for three weeks. During this time he was harassed and beaten. The three day detention in January 1997 was his second detention, he said. There was also a third incident in February 1997 where he was arrested in Colombo and detained for five days. Mr Rajasundaram said his wife, who is apparently still in Trincomalee, had recently told him the Trincomalee police were seeking him. He also said his son-in-law had been taken into custody at the airport while attempting to flee the country.

THE TRIBUNAL DECISION

After setting out the above facts, with some elaboration of Mr Rajasundaram's claims, the Tribunal referred to "country information" supplied by the United States Department of State and the Australian Department of Foreign Affairs and Trade ("DFAT"). The United States report referred to an intensification of conflict in 1996. It said the "Government generally remained committed to the human rights of its citizens. However, the intensification of the war with the LTTE was accompanied by a deterioration in the human rights record of the security forces in some areas". A DFAT report of December 1995 referred to detentions of Tamils but suggested there was no "officially sanctioned discrimination or harassment of Tamil people as a group". A DFAT cable of January 1997 spoke of problems faced in Colombo by young Tamils from the north and east but claimed "overall assessment of local and international human rights observers continues to be that while the security operations caused inconvenience and anxiety to Tamils in Colombo, provided they are properly conducted, this does not amount to harassment or physical danger". The country material also referred to disappearances and incidents of torture.

In commencing that section of his reasons entitled "Findings and Reasons", the Tribunal Member noted what he called "several important inconsistencies" in Mr Rajasundaram's evidence, the "most significant" of which was his failure to mention the September 1996 incident at his airport interview or in completing his refugee application. Because of this omission, the Member did not accept this detention occurred. He did accept the occurrence of the second and third detention but commented:

"... given the Tribunal's finding that the applicant has not been truthful, the Tribunal is of the view that the applicant may well have exaggerated his account of the physical mistreatment that he had received."

The Tribunal Member found that another inconsistency lay in Mr Rajasundaram's account of his financial support to the LTTE. The inconsistency was between his evidence that he commenced giving money in 1986 and the date (1984) set out in his refugee application. The Member also noted Mr Rajasundaram told the airport officer he had never given money to the LTTE. "Nevertheless", the Member said, "the Tribunal is prepared to find that the applicant has probably made donations to the LTTE".

In dealing with Mr Rajasundaram's "profile", the Member said:

"The applicant claims that not only that he has donated money to the LTTE but that the authorities are aware of this. He claimed that the authorities suspected he had made donations during his first detention. In relation to his third detention, he was released from detention even though (according to his own account) the authorities had found out that he had made donations to the LTTE. When asked why he was released if they had found out about this information, the applicant stated that he was very fortunate to get out of custody and that a particular police officer was instrumental in the case and a bribe was paid. However, the Tribunal finds that this account is not credible. The Tribunal accepts that he may have been asked questions about whether he had made payments to the LTTE but it does not find plausible his claim that the authorities have found evidence of this."

After some discussion about Mr Rajasundaram's son-in-law, the Member concluded:

"I find that the applicant does not have any significant political profile or an imputed political profile of any interest to the authorities. If there is any interest in the applicant it is only because of his place of birth (in an area known for its LTTE links in north Sri Lanka), however, the applicant is in a position to explain that he has not lived in the north for over twenty years. The applicant has an identity document which shows that he lives in Trincomalee. In particular, because of his age, the applicant does not fit the profile of a young Tamil from the North of Sri Lanka of interest to the Sri Lankan authorities.

I accept that the authorities may suspect that he has contributed to the LTTE (this would be a common suspicion of Tamils who have worked overseas). However as the detainee was released from the third detention, it is reasonable to conclude that either they are not particularly interested in the applicant or that they are not in a position to prove that the applicant donated any money to the LTTE.

Given the lack of any relevant profile by the applicant, I find that the applicant is not of interest to the authorities. While the Tribunal accepts that he was detained on the second and third occasion, these were the result of routine security actions by the authorities. The second detention followed the usual security check of Tamils travelling to Colombo. The third detention was a result of a routine security check of Tamils in Colombo. I find that such security checks in the context of the security situation in Sri Lanka do not amount to persecution. The applicant does not have a LTTE profile. He has lived for twenty years overseas and therefore will not be thought to have been involved directly with physically supporting the LTTE. The Tribunal does not accept the applicant's claims that the authorities have proof that he has donated money to the LTTE. The Tribunal therefore is of the view that the applicant does not face a real chance of persecution.

I find that the applicant does not have a well founded fear of persecution."

COUNSEL'S CONTENTIONS

Mr R Beech-Jones, counsel for Mr Rajasundaram, concedes the Tribunal's refusal to accept his client's evidence about the claimed first detention of September 1996 is a finding of fact not vulnerable to challenge in this Court. However, he contends the Tribunal's reasoning about the "second" and "third" detentions exhibits legal error. He submits there is ambiguity in the finding that "the applicant may well have exaggerated his account of the physical mistreatment that he had received" but the better view is the Tribunal was prepared to accept at least the possibility that Mr Rajasundaram was physically mistreated. Counsel argues that, once this point is reached, there must be a finding of possible past persecution; any assault or physical mistreatment during a detention for reasons of race or imputed political opinion "must inevitably be persecution". He says a finding that persecution had occurred in the past is critically relevant to the possibility it may occur in the future; even a possibility that such an event had occurred is relevant to an assessment about the future. He refers to a passage in the judgment of Brennan CJ, Dawson J, Toohey J, Gaudron J, McHugh J and Gummow J in Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567. At 579 their Honours said:

"Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most, cases determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events."

Later (at 579-580) they said:

"It is true that, in determining whether there is a real chance that an event will occur or will occur for a particular reason, the degree of probability that similar events have or have not occurred, or have or have not occurred for particular reasons in the past, is relevant in determining the chance that the event or the reason will occur in the future. If, for example, a tribunal finds that it is only slightly more probable than not that an applicant has not been punished for a Convention reason, it must take into account the chance that the applicant was so punished when determining whether there is a well-founded fear of future persecution."

According to Mr Beech-Jones, the vice in the present Tribunal's reasoning is that the concluding paragraph, quoted above, makes no reference to the physical mistreatment the Tribunal was apparently prepared to accept had possibly occurred. In the concluding paragraph, the Tribunal treats the second and third detentions as being merely the "result of routine security actions by the authorities"; they followed, or were the result of, a "usual" or "routine" security check of Tamils travelling to, or in, Colombo. Critically, the Tribunal Member then said: "I find that such security checks in the context of the security situation in Sri Lanka do not amount to persecution".

By way of a second point, Mr Beech-Jones says a similar error infected the last sentence of the concluding paragraph. In the penultimate sentence the Member indicated non-acceptance of Mr Rajasundaram's claims "that the authorities have proof that he has donated money to the LTTE". He went on: "The Tribunal therefore is of the view that the applicant does not face a real chance of persecution". Mr Beech-Jones says the word "therefore" indicates a view that there could be no persecution, involving detention and physical mistreatment, without proof of donations. He says this is absurd, suspicion may be enough. Moreover, the conclusion is at odds with the Tribunal's acceptance of the possibility that Mr Rajasundaram was in fact physically mistreated, even though (accordingly to the Tribunal) the authorities had no proof of his donations. Mr Beech-Jones argues that, before determining there was no chance of persecution arising out of Mr Rajasundaram's financial support of the LTTE, it was necessary for the Tribunal to take into account that he had in fact provided financial support, as the Tribunal was prepared to accept, together with the material that might indicate, first, the existence of reasonable grounds for suspicion of support (his Tamil ethnicity and earnings in Saudi Arabia) and, second, that the authorities were in fact suspicious (the physical mistreatment that had apparently occurred). Mr Beech-Jones says this was not done.

Mr Tim Reilly, counsel for the Minister, argues that what constitutes persecution is largely, if not wholly, a matter of fact for the decision maker. In that regard he cites McHugh J in "Applicant A" v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331 at 354-355. In particular, says Mr Reilly, it is erroneous to argue that assault and physical mistreatment necessarily amount to persecution; everything would depend on the severity of the assault and mistreatment.

More fundamentally, Mr Reilly argues Mr Beech-Jones misstates the Tribunal's findings. He says the Tribunal Member did not make a factual finding that Mr Rajasundaram was assaulted and physically mistreated; rather he accepted Mr Rajasundaram's claim to have been detained at the "second" and "third" detentions, noted he claimed to have been assaulted and physically mistreated and expressed the view Mr Rajasundaram might have exaggerated these claims. Mr Reilly says this was as definite a finding of fact as it was possible for the Tribunal to make, given the Member's doubts about Mr Rajasundaram's credibility. It would not have been appropriate for the Tribunal to speculate about the position. Critically, according to Mr Reilly, the Tribunal found neither the "second" or "third" detention constituted persecution.

Mr Reilly further says Mr Beech-Jones' focus on the final paragraph of the Tribunal's reasons is an example of the course criticised in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. In that case at 273, Brennan CJ, Toohey J, McHugh J and Gummow J said:

"... 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."

Mr Reilly argues that, fairly reading the Tribunal's reasons as a whole, it is clear the Tribunal used the whole of its factual findings to weigh up the likelihood of persecution of Mr Rajasundaram if he was returned to Sri Lanka.

CONCLUSIONS

I am acutely conscious of the point made in Wu, quoted above. If I thought any problem in the present Tribunal's reasons was merely a matter of infelicitous expression or unimportant detail, I would dismiss the application for review. But Mr Beech-Jones has persuaded me the problem goes deeper than that.

I have considerable sympathy for a tribunal of fact that receives from a person of suspect credibility an account, that may possibly be true, of events that, if they happened, could properly be characterised as persecution. I agree with Mr Reilly that, in such a case, it is not permissible for the Tribunal to resort to speculation. However, I also agree with Mr Beech-Jones that, in such a case, it is legally erroneous to dispose of the claim for refugee status on the basis that the evidence is untrue. As Mr Beech-Jones submitted in reply, if the decision maker is able to make a confident finding about past events, he or she can use that finding in determining the ultimate question: whether there is a real chance that the applicant will suffer future persecution, for a Convention reason, if returned to the country of nationality. A decision maker who is not able to make a confident finding about past events must approach the matter differently, assessing the future against the background that the applicant's claims about the past may possibly be true. This was the point made in the second extract from Guo set out above. It will be recalled their Honours said: "... the degree of probability that similar events have or have not occurred, or have or have not occurred for particular reasons in the past, is relevant in determining the chance that the event or the reason will occur in the future". So it was important in the present case for the Tribunal to assess the degree of probability that Mr Rajasundaram was detained, at the "second" and "third" detentions, over a period of some days and physically mistreated during that time. If the Tribunal was not able fairly to conclude those things did not happen, it had to approach the task of assessing the future on the basis it was possible, though not certain, they had happened. Moreover, if the Tribunal was not able to conclude the claimed mistreatment did not occur it was necessary for it to consider what might have been the reason for such mistreatment, if it did occur. In the present case that would have involved the Tribunal in considering whether the reason was that Mr Rajasundaram was of Tamil ethnicity and a person suspected of having given support to the LTTE.

Unfortunately, the Tribunal did not approach the matter in this way. Having reached the opinion Mr Rajasundaram "may well have exaggerated his account of the physical mistreatment that he received", and therefore understandably being unwilling to deal with the case on the basis that the physical mistreatment was an established fact, the Tribunal dismissed it totally from consideration. As the concluding paragraph makes clear, the Tribunal disposed of the case by reasoning that:

(1) Mr Rajasundaram had suffered no more that detentions at routine security checks;

(2) routine security checks did not amount to persecution within the meaning of the Convention; and therefore,

(3) there was no real chance of persecution in the future.

This reasoning would have been unexceptional if the Tribunal had been able to make a confident finding that Mr Rajasundaram had suffered no more than routine security checks. But once the Tribunal has to concede the possibility that, in the past, he suffered mistreatment that amounts to persecution, it must take account of the possibility that this mistreatment may occur in the future. A possibility may amount to a "real chance". Of course, a possibility of past persecution does not necessarily require a conclusion that there is a possibility of future persecution; still less that the possibility amounts to a "real chance". There may have been such a change of circumstances in the country of nationality that past events are not a reliable guide to the future. But where the future must be considered by reference to the past, the Tribunal must draw on such factual findings about past events as it is able confidently to make and take account of the possibilities where it cannot.

There is a similar problem about the Tribunal's consideration of financial support to the LTTE. Mr Rajasundaram gave evidence he had given support and the Tribunal was not prepared to reject that evidence. He also gave evidence that the authorities were aware of his financial support. The Tribunal accepted the authorities may suspect he had made financial contributions but it did not accept the authorities had proof of that fact; the reason being that Mr Rajasundaram was released from the "third" detention. The Tribunal took no account of the possibility that the authorities' suspicion about his having made financial contributions was the reason for the claimed prolonged detention and physical mistreatment on the "third" occasion; even if, for lack of proof, the authorities ultimately had to release Mr Rajasundaram. More importantly, the Tribunal did not consider the possibility that, if Mr Rajasundaram were retained to Sri Lanka, he would face future prolonged detention and physical mistreatment because of such suspicions. Perhaps he would not; perhaps there has been a relevant change of circumstances. That question is one of fact for the Tribunal. The relevant legal point is that, once the Tribunal allowed the possibility that the authorities suspected Mr Rajasundaram had made financial contributions to LTTE, it was necessary to consider the ramifications of such a suspicion for the future. It was not good enough to deal with the matter only in terms of proof; to say that, because the authorities had no proof of contributions Mr Rajasundaram faced no real chance of persecution.

The errors I have noted are not mere errors of expression, looseness of language or comments on peripheral matters. They are errors in the Tribunal's reasoning process concerning matters fundamental to Mr Rajasundaram's case. As a result of those errors, the Tribunal failed properly to address the case made to it. The decision must be set aside and the matter remitted to the Tribunal to be reheard and determined according to law. The Minister must pay the applicant's costs.