Ratnam, Ila Constance v Minister for Immigration & Ethnic Affairs

[1997] FCA 330

CATCHWORDS

IMMIGRATION - Refugees  - Application for refugee status - Well founded fear of persecution - Real chance of persecution test - Subjective and objective test - Migration Act 1958 (Cth) ss 420(2)(b), 476(1)(e), 476(1)(g) and 476(4)(a)

ADMINISTRATIVE LAW  - Judicial review  -  Whether incorrect application of the applicable law - Whether no evidence to justify the making the decision  -  Whether failure to observe the appropriate procedures

Migration Act 1958 (Cth) ss 420(2)(b), 475, 476(1)(e), 476(1)(g), 476(4)(a), 486

Canada(Attorney-General) v. Ward [1993] 103 DLR (4th) 1

Briginshaw v.  Briginshaw (1938) 60 CLR 336

Chan Yee Kin v. Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379

Malec v. J.C. Hutton Pty Limited (1990) 169 CLR 638

Minister for Immigration & Ethnic Affairs v. Wu Shan Liang (1996) 185 CLR 259

ILA CONSTANCE RATNAM v. MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS AND REFUGEE REVIEW TRIBUNAL
(constituted by Ms T HARPER)

No. VG 29 of 1996

EMMETT  J

SYDNEY (HEARD IN MELBOURNE)

6 MAY 1997

IN THE FEDERAL COURT OF AUSTRALIA	)
)
VICTORIA DISTRICT REGISTRY	)     No. VG 29 of 1996
)
GENERAL DIVISION	)

BETWEEN:             

ILA CONSTANCE RATNAM
Applicant

  AND:  

  AND:  

MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
(constituted by Ms T HARPER)
Second Respondent

CORAM:

EMMETT J

PLACE:

SYDNEY (HEARD IN MELBOURNE)

DATED:

6 May  1997

MINUTES OF ORDER

The Court orders that:

1. The application be dismissed.

2. The applicant pay the respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA	)
)
VICTORIA DISTRICT REGISTRY	)     No. VG 29 of 1996
)
GENERAL DIVISION	)

BETWEEN:		ILA CONSTANCE RATNAM Applicant
AND:		MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS First Respondent
AND:		REFUGEE REVIEW TRIBUNAL (constituted by Ms T HARPER) Second Respondent
CORAM:	EMMETT J
PLACE:	SYDNEY (HEARD IN MELBOURNE)
DATED:	6 May  1997

REASONS FOR JUDGMENT

This is an application brought under the jurisdiction conferred on the court by section 486 of the Migration Act 1958 (“the Act”). It is an application for review of a decision of the Refugee Review Tribunal given on 19 December 1995 in which the Tribunal affirmed a decision to refuse to grant a protection visa to the applicant. It is common ground that the decision is a judicially reviewable decision under section 475 of the Migration Act (“the Act”).

Facts Found by the Tribunal

The applicant arrived in Australia on 6 May 1994 under a visitors visa. She is a national of Sri Lanka and is a single Tamil woman, aged 45 years of age, who was born in Colombo. She has a step-brother who still resides in Sri Lanka and two brothers and two sisters who live in Australia.

The applicant had relatives in Jaffna, where her fathers’ sisters and her cousins lived. From time to time, some of her relatives from those areas came and stayed with her for short periods with their friends, some of whom she did not know. From 1992, the applicant received increasing numbers of visits to her flat in Colombo from security forces to check the identity of any visitors staying with her.

After regulations came into force requiring registration with the police of visitors to Colombo, the applicant did not register the visits of her relatives and friends. During their visits, the security officers would scold her for not registering her visitors. At no stage was she assaulted, arrested or detained although she was frightened by the visits.

In mid 1993, Mr Lalith Athulathmudali, a political leader in Sri Lanka, was assassinated and a photo of a young Tamil boy suspected of being involved was published in the newspapers. That person had been to the applicant’s house to repair her television set. Neighbours told the police that he had been at the applicant’s house and the applicant was questioned by the police. However, the police did not seriously harass her, except to the extent that coming around and asking questions constituted harassment.

Conditions have deteriorated in Sri Lanka since the applicant left Sri Lanka and in late 1994 Mr Gamini Dissanayake, another political leader, was assassinated. A female suicide bomber was blamed. A friend of the applicant’s has been living in her flat in Colombo and looking after her things since she left. At about the time of the assassination, the police asked the present occupant of the applicant’s flat about her whereabouts and was told that she was in Australia.

The Tribunal’s Conclusions

The applicant’s case before the Tribunal was that she fears that if she were returned to Colombo, she would be arrested and questioned by the security forces, and asked if she knew people who had been involved in terrorist activities or those involved in the assassination which occurred after her departure. Her fear relates to the Tamil visitors who came to her place when she was still in Colombo. She did not know all of the people who visited her flat, and she fears that two or three of them may have been involved in murders. She says that she fears she will face persecution on her return on the basis of her race, her imputed political opinion because she has had Tamils staying at her flat and because she is a member of a particular social group, Tamils, who live in Colombo.

In its reasons, the Tribunal assumed, apparently without making a finding, that the applicant, being outside her country of origin, has a subjective fear of persecution should she be returned. The only question which the Tribunal considered, therefore, was whether that fear was well founded.

The Tribunal concluded that there is not a real chance that the applicant would be persecuted for reasons specified in the Convention (as defined in the Act) were she now or in the reasonably foreseeable future to return to Sri Lanka. The Tribunal was satisfied that, even were the applicant to face questioning by the authorities on her return to Sri Lanka, there is not a real chance that on the basis of her Tamil race or imputed political opinions she would face such mistreatment or harassment as would constitute Convention persecution.

The Grounds Relied on by the Applicant

The application filed in this court raised three grounds. The first was the ground specified in section 476(1)(e), namely, that the Tribunal incorrectly interpreted the applicable law and incorrectly applied the applicable law to the facts as found. It was contended that the applicable law, namely, Article 1 of the Convention as explained by the High Court in Chan Yee Kin v. Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 (“Chan’s Case”), requires speculation based upon all the relevant facts - the factual matrix. It was said that a failure to take into account a relevant matter that forms part of that factual matrix is the result of an incorrect interpretation of that law.

The second ground was that there was no evidence or other material to justify the making of the decision within the meaning of section 476(1)(g) of the Act. It was said that the effect of section 476(4)(a) is that the test in Briginshaw v Briginshaw (1938) 60 CLR 337 is attracted and the Tribunal did not have proper regard to that consideration.

The third ground, based on section 476(1)(a) of the Act which refers to a failure to observe the appropriate procedures, was that the Tribunal did not decide the matter in accordance with substantial justice and the merits of the case, in breach of section 420(2)(b) of the Act. It was contended that that ground was made out because of selective reliance placed by the Tribunal on parts of documents. It is said that that is a failure to act according to substantial justice and the merits of the case as required by section 420(2)(b). It was also suggested that failure on the part of the Tribunal to speculate was also a breach of section 420(2)(b).

In the course of submissions, counsel for the applicant acknowledged that, whatever ground under section 476(1) might be applicable, and it was said that there was an overlap between the three grounds relied on, the complaint which the applicant makes is two-fold. It was said that the Tribunal’s decision was vitiated, first by selective quotation from documents and secondly by a failure to engage in appropriate speculation.

Selective Reliance

The complaint was that the selective reliance alleged above was an instance of the Tribunal acting otherwise than according to substantial justice and the merits of the case as is required by section 420(2)(b) of the Act. In that regard, I was referred to a number of a decisions concerning the relationship between sections 420 and 476(1)(a). In the light of the view which I have formed, it is not necessary for me to embark on a consideration of those authorities.

The applicant pointed to two documents referred to in the reasons for decision of the Tribunal. The first is a document published by Amnesty International in February 1994 entitled “Sri Lanka: Balancing human rights and security: abuse of arrest and detention powers in Colombo”. The Tribunal quoted the following passage:

“People arrested by the police are usually detained until their identity and background is checked in central records. Most are released within 24 hours, or at least within two or three days. A significant number are held for weeks or even months. They are rarely told why they have been detained. Some agencies routinely beat detainees to extract confessions. Detainees are often interrogated in a language they cannot speak, forced to sign statements they cannot understand and held in grossly overcrowded cells. After being released they are at risk of being repeatedly rearrested[...]”

The following passage was also quoted:

“Tamil people are particularly at risk of being arrested if they are young men, if they have recently arrived in Colombo, if they do not have a job or family in Colombo, if their identify documents were issued in the northeast, or if they are not carrying identity documents.....” .

The applicant complains that other parts of that document reflected a much more serious state of affairs in Colombo than might be inferred from the two passages quoted. For example, the following passages were referred to:

“The indiscriminate round-up of people solely because of their ethnic origin, and reports of their treatment in custody, is making many members of the Tamil community fearful that they are not safe to walk the streets of Colombo.

Echoes of the past: dangers of not implementing safeguards

The Government of Sri Lanka is risking the safety of these detainees by failing to implement safeguards which exist on paper in law or as political commitments. The way in which people are being arrested and detained is reminiscent of the manner in which thousands of people were detained in the south between 1988 and 1990, when the government was seeking to suppress an insurgency within the majority Sinhalese population by the Janatha Vimukhti Peramuna (JVP, People’s Liberation Front). The way in which people have been recently abducted in Colombo by army in civilian dress, blindfolded with their own shirts and taken away in unmarked vehicles to secret locations where they are tortured, is a particularly chilling echo of the past...

Amnesty International has also interviewed many Tamil men who were arrested even though they could demonstrate long-standing residence and employment in Colombo and possessed proper identify documents...

Some Tamil people have been arrested by groups of men in military or civilian dress, blindfolded and taken to secret places of detention where they have been held for at least a week, interrogated and tortured to make them confess to involvement with the LTTE. Families have no idea who has taken their relative nor where their relative is detained. Both the army and police always deny to the families that they are holding the missing relative. The prisoners have been released without charge and without ever knowing what offence they are supposed to have committed...

It is therefore very disturbing that only a few months after the Defence Secretary gazetted a list of the 343 authorised places of detention in Sri Lanka, people were being abducted, held in secret, unauthorised locations and interrogated under torture.”

The second document is an information note issued by the United Nations High Commissioner for Refugees concerning Sri Lanka asylum seekers in Europe and North America. The Tribunal cited the following passage from that document:

“It is believed that a valid threshold for returnees to establish themselves without serious personal security problems in the South, would be the presence of close relatives and/or duration of previous residence and/or past employment in these areas.”  (UNHCR, Geneva, June 1993).

The applicant complains that the following material contained in that report should also have been referred to and taken into account by the Tribunal:

“...it is recommended that the return of rejected asylum seekers should be carried out by Governments with prudence. UNHCR, therefore, would not object to mandated return provided basic safeguards of a fair determination procedure have been observed and the possible consequences of return have been assessed taking into account the relative risk of a changing mosaic of safe or unsafe areas.”

I do not consider that either of the applicant’s complaints is justified. It is clear that the Tribunal was mindful of the position in Sri Lanka both before and after the applicant’s departure. For example, the Tribunal made the following observations in its reasons for decision:

“The Tribunal ..... accepts that the situation in Colombo has deteriorated in some erspects  (sic)  in recent months - and that many Tamils in Colombo face a risk of arrest, interrogation, detention, and mistreatment and/or harassment by the Sri Lankan security forces. On the other hand, the Tribunal takes into account improvements in human rights practices under the Kumaratunga government which have been referred to in recent reports which have indicated that most people arrested were released within 48 hours, that there were very few reports of harassment and that there was a lower level of mistreatment of people who are detained (Report of US Department of State, February 1995, op cit; Sri Lankan Information Monitor Inform, May 1995, op cit).”

Further, the Tribunal quoted from an Amnesty International Australia’s document of 5 December 1994 which says:

“....Amnesty International holds the view that the situation for Tamils returning to Colombo is far from safe, and that all cases of Tamil asylum-seekers must be examined with the most extreme care, in particular taking into account the latest information about the situation of Tamils in Colombo.“

I do not consider that there has been any failure to act according to substantial justice and the merits of the case by reason of the selective reliance alleged by the applicant. There was nothing unjust on the part of the Tribunal in concluding that parts of the first document were relevant or irrelevant, to its consideration. It could not be suggested that the Tribunal failed to have regard to the appropriate facts as asserted in the documents. As I have indicated, the Tribunal had regard to a later document which painted a fairly gloomy picture of the state of affairs in Sri Lanka. The weight which the Tribunal was prepared to give to various evidentiary materials before it was a matter for the Tribunal.

It could not be suggested, and I did not understand it to have been suggested, that the passages quoted by the Tribunal were taken out of context such that the meaning of them was changed. While the first omitted passage follows immediately after the passage quoted by the Tribunal, the omitted passage does not qualify the quoted passage in any way.

The object of the second document was to specify the minimum requirements which should be satisfied before a host country should return a person claiming refugee status to the country of his or her nationality. The passage cited was the most significant statement in the document. Once again, it could not be suggested that the omitted passage qualified the pivotal conclusion of the document that a valid threshold for returnees to establish themselves without serious personal security problems in the south of Sri Lanka would be the presence of close relatives and/or the duration of previous residence and/or a past employment in those areas.

The Tribunal took all of those considerations into account in examining the position of the applicant. The weight which it gave to the material contained in the documents and the other evidence before it was a matter for the Tribunal and is not subject to review. Accordingly, I conclude that there is no substance in the complaint based on alleged selective reliance on parts of the two documents referred to above.

“Real Chance of Persecution”

The Tribunal made a number of observations in its reasons concerning the task before it of making a determination as to whether the applicant fell within the definition of refugee in Article 1 of the Convention. No complaint was made on behalf of the applicant that the legal principles cited by the Tribunal were incorrect. The complaint was that the Tribunal did no more than pay lip service to the passages which it cited.

The essence of this complaint is that, in the course of its reasons for decision, the Tribunal said the following:

“However, given the assassination occurred some five months after the applicant left Sri Lanka, that the police were told that the applicant was in Australia by the present occupant of her flat when they questioned her, and given the speculative nature of this claim, the Tribunal concluded that it is not a real chance that, on the basis of the above reasons, the applicant would be persecuted for convention reasons were she now or in the reasonably foreseeable future to return to Sri Lanka.”

It was said that the Tribunal erred in so far as it rejected the hypothesis that the applicant would be persecuted because it was of a speculative nature. That was said to be erroneous because Chan’s Case requires the Tribunal to speculate as to whether there is a real chance of persecution within the meaning of the Convention.

However, as the High Court observed in Minister for Immigration & Ethnic Affairs v. Wu Shan Liang  (1996) 185 CLR 259 (“Wu’s Case), the word “speculative” in the context in which it is used need not amount to a denial of the Tribunal’s function of assessment of future chances of persecution. The word can equally be used to refer to the probative force of the material before the delegates (at page 277 referring to Malec v J.C. Hutton Pty Limited (1990) 169 CLR 638 at 643).

The applicant said that she feared that the security forces may have shown to her neighbours photographs of the woman suspected of the 1994 assassination and that she feared that they may have been asked if that person had been seen frequenting the neighbourhood near her house. There was no evidence that that had happened. Even if it did, it is difficult to see how it could constitute persecution within the meaning of the Convention.

Be that as it may, in the passage quoted, the Tribunal was saying no more than it had no evidence to suggest that the applicant’s fear was based in fact. It may have been different if the applicant had adduced some evidence that the applicant’s neighbours had been questioned. However, there was none. Accordingly, there was no error in holding that the possibility of persecution was a matter of speculation in the sense in which the Tribunal used the expression complained of.

It was suggested by counsel for the applicant that, since there was no finding against the credibility of the applicant, some weight should have been given to the fact that, subjectively, she had the relevant fear. The contention appeared to be that the Tribunal should have concluded that that fear was well-founded simply because there was no finding against the credibility of the applicant. I have already observed that the Tribunal made no positive finding that the applicant subjectively had the relevant fear.

In any event, of course, the applicant’s contention ignores the requirement to consider, separately, the subjective and objective elements involved in the definition of refugee in Article 1 of the Convention. Both requirements must be satisfied. Even if the Tribunal had made a positive finding that the applicant had the relevant fear, it must be shown, as a matter of objective fact from the materials considered by the Tribunal, that that fear was well founded. No conclusion in relation to the second matter can be reached from the mere finding as to the existence of a subjective fear.

Naturally, if the applicant gave evidence of objective facts which could found the fear, and there was no finding against the credibility of the applicant in relation to those facts, the position may be different. That, however, is not the case in the present application. The applicant was able to give no evidence of her own as to what had happened in Sri Lanka since her departure other than mere speculation.

One aspect of the complaint in relation to the Tribunal’s approach to the real chance of persecution arose out of the way in which the Tribunal dealt with the position in Sri Lanka before the applicant left. The Tribunal considered first whether the applicant had a well founded fear of persecution at the time she left Sri Lanka. It concluded as follows:

“The Tribunal finds, on the basis of the above, that the applicant did not have a well founded fear of persecution by the Sri Lankan authorities when she left Sri Lanka”.

The Tribunal then embarked on a consideration of whether the applicant had a well founded fear of persecution should she be returned to Sri Lanka.

It was said that by determining whether there had been any persecution before the applicant left Sri Lanka, the Tribunal “brought a mindset to the exercise which was not the mindset required in accordance with the decision of the High Court in Chan’s Case.” It was said that a prospective view is required and that to pinpoint the time when the person left is to put the emphasis wrongly on whether the applicant was persecuted before leaving the country of nationality rather than on whether there is a real chance that she will be persecuted in the future.

Even so, counsel for the applicant accepted that there could be no complaint about the Tribunal’s approach if the observation set out above had not been included before the Tribunal embarked on its consideration of whether the applicant had a well founded fear of persecution should she be returned to Sri Lanka. Further, it is clearly a relevant consideration to take into account, when considering what is likely to happen if the applicant returns, what the position was before the applicant left the country of her nationality (see Chan’s Case at 387, 399 and 406). This aspect of the complaint, therefore, has no substance.

It was also contended on behalf of the applicant that the decision in Chan’s Case requires that the Tribunal must not, by a process of factual findings, foreclose reasonable speculation upon the chances of persecution emerging from a consideration of the whole of the material. It was said that this court must look at the evidence canvassed by the Tribunal and if that which is extracted by the Tribunal provides no foundation for the conclusion reached, the Tribunal cannot have been reasonably satisfied within the Briginshaw test.

The ultimate submission appears to have been that, having regard to all the material which it referred to concerning deteriorating circumstances in Sri Lanka, the Tribunal should have speculated further as to whether there was a real chance of persecution. It was said that the Tribunal, having regard to its “mindset”, failed to give proper regard to the relevant question.

Much of the applicant’s approach appeared to be based upon a contention that there was a presumption of persecution. However, one must start with the presumption that the country of nationality will look after its nationals Canada (Attorney-General) v. Ward [1993] 103 DLR (4th) 1). An applicant must rebut that presumption, although the onus is not necessarily a heavy one. The applicant needs to demonstrate no more than that there is a real chance that the country of nationality will not look after its nationals and that the applicant will be persecuted. Nevertheless, there must be some material from which such a conclusion can be drawn. Further, whether the conclusion can be drawn from the material available is a matter for the Tribunal and is subject to review only on the very limited grounds set out in section 476(1).

In so far as the applicant seeks to demonstrate an error within section 476(1)(e), the contentions are widely astray. They came to little more than an invitation to the court to substitute its own views of the evidence before the Tribunal in place of the Tribunal’s views. That is simply not permissible. This aspect of the complaint is also without substance.

I do not consider that any of the grounds relied upon by the applicant is made out and, accordingly, the application must be dismissed with costs.

I certify that this and the preceding thirteen pages are a true copy of the Reasons for Judgment of his Honour Justice Emmett

Associate:

Dated:               6 May 1997

Heard:            10 April 1997

Place:              Sydney (Heard in Melbourne)

Decision:        6 May  1997

Appearances:

Counsel for the applicant:     R. Appudurai

Solicitor for the applicant:     Ravi James & Associates.

Counsel for the respondent:    W. Moseley

Solicitor for the respondent:   Australian Government Solicitor