Rajkumar, Sivasubramanian v Minister for Immigration & Ethnic Affairs

[1997] FCA 1080

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 215  of 1997

BETWEEN:	SIVASUBRAMANIAN RAJKUMAR Applicant
AND:	MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent
JUDGE:	BURCHETT J
DATE:	6 OCTOBER 1997
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Refugee Review Tribunal (Mr G Brewer) delivered on 16 April 1997.

The applicant had given evidence he was born in Sri Lanka on 16 December 1959 in the Jaffna region.  As it seems to have been accepted that his parents were Tamils living in Sri Lanka, and that he himself was educated in that country, I have difficulty in understanding how, in the absence of evidence to the contrary, his land of birth could be in doubt, if indeed it was.  I note there was an express finding that the applicant was harassed “in Sri Lanka during the communal riots of 1983”.  In 1984, when he would have been twenty-four or twenty-five, he moved to India to escape the Sri Lankan civil conflict.  In India, he married an Indian national in 1985, and worked for a number of years, until 1993, for an Indian enterprise involved in the export of leather.  In 1993 or 1994, he returned to Sri Lanka, where he and his wife lived with his parents for three months and then moved to Colombo to take up again there his work for his Indian employer.  He was able to travel from and back to Sri Lanka on three occasions thereafter before finally coming to Australia in early 1995.  He then claimed to be a refugee from Sri Lanka.

The Tribunal, which rejected the applicant’s claim, indulged in a lengthy discussion as to whether the Indian passport, which he had used on his return to Sri Lanka and for his subsequent travels, was genuine.  The applicant had described it as a “false passport” obtained through the intervention of an uncle of his wife.  Whether that meant that the uncle procured a forger, or had access to a corrupt official of the Indian government, was not explained.  The Tribunal’s reasons simply assume that a forgery was alleged.  Nor was it explained why, if the Tribunal thought the matter important, it did not ask the Indian authorities.  The normal reasons for reticence towards a foreign government in a refugee matter did not apply, since the applicant was not claiming to come to Australia as a refugee from India, but as a refugee from Sri Lanka.

The Tribunal concluded that, contrary to the applicant’s story, the passport, which has since been lost, was genuine.  This was an inference, based on the fact that the applicant had been able to pass through passport checks at Colombo in a time of civil conflict, without apparent difficulty.  Of course, such an inference could hardly have been accepted, against the applicant’s direct account of the matter, if he had been thought worthy of belief.  But he was not.  He had put forward a series of documents in support of his claims of persecution which were proved, to the Tribunal’s satisfaction, to have been concocted.  That, beyond question, severely damaged his credit.

Had the case turned on the question of the validity of the passport, the applicant could have mounted a formidable argument.  On the basis of what was no more than an assumption that a “false passport” meant a forgery rather than a genuine document falsely issued, the Tribunal erected an edifice of adverse inference without taking the obvious precaution, which fairness demanded it should take before making an extreme finding against the applicant, of checking with the Indian authorities.  But the issue was not actually decisive.  Having found the applicant could return to India (presumably, it was thought he would be able to do so by virtue of some unspecified law giving Indian citizenship to a spouse of an Indian citizen), the Tribunal went on to find “that there is no credible evidence before it on which to base a finding that he would face a real chance of persecution for a Convention reason in [Sri Lanka]”.  It is this finding that the applicant must overcome.

The argument put on the applicant’s behalf was that the finding was tainted by error arising out of the Tribunal’s consideration of the Indian passport.  The Tribunal was said to have discounted evidence of harassment in Sri Lanka because the applicant had been able to avoid it without difficulty; but in so discounting this evidence, the argument ran, the Tribunal overlooked the powerful support the applicant had from an apparently genuine Indian passport.  If, in fact, the applicant will be deprived of that support in the future, the position, it was urged, may be quite different.  Also, the Tribunal’s view of the passport issue was claimed to have affected its view of the applicant’s credit.

These points are not without some plausibility, but I do not think they can prevail against the clear finding of fact which I have set out.  As the Tribunal noted, the applicant’s evidence was “that he was never registered in Colombo”.  That might have occasioned the need to produce his passport, which he may not need to do in future if he registers there.  The Tribunal thought it was a matter of “appropriate identification”.  To say otherwise would be to engage in speculation.  The Tribunal did not do that, but it did find that the applicant “worked and lived [in Colombo] for a significant period of time without encountering serious harm.  He also passed airport security checks on a number of occasions.”

If there is any ambiguity about the role the passport may have played in that part of the Tribunal’s reasoning to which I have just referred, the matter is cleared up by what follows.  For the Tribunal goes on to emphasize its disbelief of particular aspects of the applicant’s evidence, aspects not related to the question of the genuineness of the passport, and to find that he “has contrived to submit false documents in a self-serving endeavour to bolster his claims to refugee status”.  It then makes the finding of the absence of “a real chance of persecution” in Sri Lanka, and adds:

“Despite risks of harm to some Tamils, especially in the north of Sri Lanka, the applicant has lived and worked in Colombo, where he has family, without encountering serious harm.  In view of the fact that he has not provided any credible claims of serious harm during his recent periods of residence in Sri Lanka, the prospect that he would now or in the foreseeable future face a real prospect of harm if he were to return to Sri Lanka is remote ... .”

This last finding plainly depends, not on any view the Tribunal may have had about the availability to the applicant of an efficacious Indian passport, but on a view about the credibility of his claims and the seriousness of any alleged incidents that might have been credible.  The finding is that, having regard to his past experience, the prospect of harm is remote.

The facts, of course, were for the Tribunal, subject to correction by the Court for error of law.  Although there are certainly problems about the Tribunal’s treatment of the issue of the Indian passport, I do not think any error of law vitiates the decision denying the applicant the status of a refugee from Sri Lanka which he claimed.  Accordingly, the application is dismissed.

I have been asked by counsel for the Minister to make an order that costs, including reserved costs, should be paid by the applicant.  Counsel was not able to tell me precisely what any reserved costs related to, but in any event it seems to me that this is a case which calls for the exercise of the Court’s discretion, rather than for a simple application of the general proposition that costs follow the event.  The application, as it was argued, plainly arose, at least in large measure, out of the way in which the Tribunal dealt with the issue of the Indian passport, which I have discussed in my reasons.  I have there made it clear that there were very unsatisfactory aspects of the Tribunal’s treatment of that issue.  It does not seem to me that this feature of the case should be overlooked on the issue of costs.  In all the circumstances, I think the proper order is that each party bear his own costs.  Accordingly, although the application is dismissed, I order that each party bear his own costs.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Burchett.

Associate:

Dated:  10 October 1997

Counsel for the Applicant:  Mr P Rose

Solicitors for the Applicant:  Wimal & Associates

Counsel for the Respondent:  Mr R M Downing

Solicitor for the Respondent:  Australian Government Solicitor

Date of hearing:  6 October 1997

Date of judgment:  6 October 1997