Sathianathan v Minister for Immigration & Multicultural Affairs

[2000] FCA 1337

FEDERAL COURT OF AUSTRALIA

Sathianathan v Minister for Immigration & Multicultural Affairs [2000] FCA 1337

MIGRATION – protection visa – refugee review tribunal affirming delegate’s decision refusing application – application for review – whether tribunal failed to set out finding on material question of fact – whether tribunal failed to make finding on whether young Tamil males had a well-founded fear of persecution based on their ethnicity – whether no evidence for findings of particular facts

Migration Act 1958 (Cth), ss 430(1)(c), 476(1)(e)

Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845,applied

Minister for Immigration & Multicultural Affairs v Rajamanikkam [2000] FCA 1023, referred to

SHANMUGANATHAN SATHIANATHAN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
W 161 of 1999

R D NICHOLSON J
19 SEPTEMBER 2000
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 161 of 1999

BETWEEN:	SHANMUGANATHAN SATHIANATHAN Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent
JUDGE:	R D NICHOLSON J
DATE OF ORDER:	19 SEPTEMBER 2000
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The application for review be dismissed.

2.The applicant pay the respondent’s costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 161 of 1999

BETWEEN:	SHANMUGANATHAN SATHIANATHAN Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE:	R D NICHOLSON J
DATE:	19 SEPTEMBER 2000
PLACE:	PERTH

REASONS FOR JUDGMENT

1. By way of an amended application for an order of review the applicant seeks to review a decision of the Refugee Review Tribunal (“the Tribunal”) made on 19 November 1999.  That decision affirmed a decision of the delegate of the respondent not to grant to the applicant a protection visa.

2. The applicant is a 28 year old male citizen of Sri Lanka.  He arrived in Australia on 3 April 1999.  On 6 April 1999 he lodged his application for a protection visa. 

   The relevant legislative provisions

   Under s 36(2) of the Migration Act 1958 (Cth) ("the Act") a non- citizen in Australia is eligible for a protection visa if that person is someone: “… to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.”  The Refugees Convention is the Convention Relating to the Status of Refugees 1951 and the Refugees Protocol is the Protocol Relating to the Status of Refugees 1967.  The expression “Convention” will be used to mean the Convention as amended by the Protocol.

   Article 1a (2) of the Convention defines a “refugee” to be any person who:
   “…owing to 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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it”.

   Applicant’s claims

3. The Tribunal accepted the applicant’s claim that he is of Tamil ethnicity from a district (Mannar) in the Northwest of Sri Lanka where his family live on a farm.

4. His claim was that, if his application for a protection visa was refused and he was returned to Sri Lanka, he would be killed by the Sri Lankan Armed Forces (“SLAF”) because they believe he is a member of the Liberation Tigers of Tamil Eelam (“LTTE”).  He claims that he, his younger brother and some friends joined the LTTE and were given training.  He did not fight for it, only doing manual work.  His claim was he wanted to leave the LTTE, eventually being allowed to do so because his younger brother was in a higher position in the military wing of the LTTE.

5. The applicant claimed he then went home and worked in the garden.  However, heavy fighting then commenced in his area for three years.  The SLAF continually advanced and retreated.  He suffered an injury from a bombing in his home region.  Members of the “EPRLF” came with the SLAF and searched his house but he was in hiding.  Recently he escaped to a cousin’s house in another part of the district.  He claimed that members of the “EPRLF” came looking for him.  In this situation he accepted the offer from a friend upon payment of a sum of money to be taken to the airport and sent overseas.

6. The submission for the applicant was that because of his and his brother’s involvement with the LTTE, he would be imputed with the political opinion of the LTTE, which is opposed to the Sri Lankan government.  It is submitted that any Tamil suspected of involvement with the LTTE or sympathising with the LTTE is at high risk of being killed, tortured or illegally and arbitrarily detained by the authorities without the possibility of a fair trial.  Furthermore, it was claimed that even if the applicant and his brother had not been involved with the LTTE, security forces persecute Tamils because of an adverse political opinion imputed to them merely because of their ethnicity.

   Tribunal’s findings

7. The Tribunal firstly assessed credibility factors in relation to the applicant.  It found the applicant’s account of events leading up to his departure from Sri Lanka and his association with the LTTE were inconsistent and not plausible.  Firstly, it said the applicant made different claims about his association with the LTTE.  Secondly, it was said he gave different versions about his attempts to leave the LTTE.  Thirdly, it was found the applicant had provided implausible details about his time after he left the LTTE.

8. On the question of the applicant’s religion, the Tribunal said:

   “These concerns are compounded by the applicant’s conflicting and implausible evidence about his religion.  A letter submitted following his first hearing allegedly from a parish priest in the Applicant’s home area states that the applicant is a member of the local parish and that he is a practicing (sic) Christian when all his earlier evidence is that he is Hindu.  The applicant’s explanation at the second hearing was that he is both Hindi and Christian.”

9. The Tribunal had “serious reservations” about the applicant’s claims and did not accept any of his explanations.  It did not find his claimed reason for departing Sri Lanka to be credible.  It did not accept any of the claims which flowed from his activities there.  It did not accept that the authorities are interested in the applicant on account of his actual or imputed LTTE profile.  It did not accept that the applicant faces persecution on the ground of a social group “membership of his family” on account of his brother’s alleged involvement with the LTTE.

10. The Tribunal also referred to country information which it said indicated that the applicant lived in an area that is being controlled by the Army for some time, although the reports indicated the LTTE still waged fierce fighting in the surrounding villages and jungle.  It found the farm was not far from an army base.  It said that while the SLAF had been ruthless in attacking the LTTE and its known supporters, there is no evidence to support the view that it attacks all citizens.  There was evidence the applicant had remained in the same location for a significant period until shortly before his departure for overseas.  The Tribunal said there was no evidence other family members had been harassed.  In the circumstances the Tribunal concluded that the authorities are aware he resided in the local area but had no adverse interest in him.  It found this to be consistent with the applicant’s negotiation of security procedures between his home town and the airport and then through the airport. 

11. The Tribunal then turned to information that returning Tamils could be questioned and even detained on return to Colombo.  It found the applicant could be detained and questioned on arrival in Colombo particularly if he was suspected of being connected with the LTTE or seen as able to provide information about “people smuggling”.  However, the Tribunal said it had already found that it did not accept his claims about his involvement with the LTTE.  Furthermore, the Sri Lankan authorities would be aware of the assistance demanded by the LTTE of all residents in areas formally under its control.  Consequently, if he were detained and interrogated at the airport on arrival, the Tribunal was satisfied he would be released without any undue harm.

12. The Tribunal therefore concluded that in all of these circumstances it was satisfied the applicant does not face a real chance of persecution by the Sri Lankan airport authorities on account of his political opinion or race.  Furthermore, he did not face a real chance of persecution by the SLAF or its allies in his home area, despite the fact that some fighting still goes on in that part of Sri Lanka.  It found there was not a real chance that he faced persecution at the hands of either the Sri Lankan authorities or its agencies should he return to Sri Lanka.  It found he did not have a well-founded fear of persecution on account of his political opinions, his Tamil race or any other Convention reason.

    Whether Tribunal failed to set out finding on material question of fact

13. Although the amended application included a ground based on s 476(1)(e) in its second limb, that aspect was subsumed in and pressed as part of an alleged breach of s 430(1)(c) of the Act. That paragraph requires the Tribunal when it makes it decision on a review to prepare a written statement that sets out its findings on any material questions of fact.

14. The material question of fact on which it is said the Tribunal failed to make a finding was whether the applicant as a young man of Tamil ethnicity living in the north-west of Sri Lanka in an area of continued fighting was at risk of persecution by reason of the undisputed country information before the Tribunal.  That information was to the effect that young Tamil men were randomly detained, questioned and subjected to torture and other ill-treatment by Sri Lankan authorities on grounds of race or imputed political opinion.  Put another way, it is said it was not sufficient for the Tribunal to rely on its disbelief in the applicant without making a finding on the matter alleged to be a material question of fact.

15. In written submissions for the applicant it is accepted that the Tribunal had made the finding there was no evidence to support the view that the SLAF would attack all citizens.  However, it is said that does not touch on the material issue which is whether it targets young Tamils such as the applicant living in disputed areas so as to create a well-founded fear of persecution.

16. The essential element of the submissions for the applicant is that despite the findings it made of the assistance demanded by the LTTE of all residents in areas formally under its control and the atmosphere of insecurity prevailing in Sri Lanka, it did not go on to consider whether there is a risk that suspicion would fall upon the applicant and whether it might be accompanied by detention and interrogation amounting to persecution.

17. In short, it is submitted that the Tribunal did not address the question whether an adverse political opinion could be imputed to the applicant merely because of his ethnicity.  This constituted a failure to consider the particular circumstances of the applicant against the available country information.

18. It is not contended for the applicant that the disbelief found by the Tribunal in his evidence is open to challenge.

19. For the respondent it is submitted the Tribunal should be seen as having considered this submission.  As the recounting of its reasons has shown, the Tribunal specifically referred to this submission.  It is submitted that it answered the submission when it made the finding that the applicant did “not have well-founded fears of persecution on account of his political opinions, his Tamil race or for any other Convention reason”.  In the same paragraph the Tribunal said it reached that view “in considering the applicant’s claims and the information before it”.

20. The materiality of the fact that in issue by this ground of appeal is (correctly) not put in context for the respondent:  Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845 at pars 54 to 56. However I do not consider a reading of the Tribunal’s reasons establishes a failure to set out a finding on that material question. A finding, namely the one relied upon in the respondent’s submissions, covered the material fact. It follows consideration of country information. It also followed findings concerning the experience of the applicant and his family. In my opinion this ground cannot be made out.

21. To some large extent the real complaint behind this ground is that the Tribunal did not refer in greater detail to country information which supported submissions from the applicant’s solicitors.  However, there was no obligation on the Tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding it made:  Singh at par 46

    Whether no evidence or other material to justify Tribunal’s decision

22. This ground is brought in reliance upon s 476(1)(g) of the Act. That ground of jurisdiction must be read subject to the provisions of s 476(4). Relevantly here it is provided in s 476(4)(b) that the ground is not to be made out unless the person who made the decision based the decision on the existence of a particular fact which did not exist.

23. For the applicant it is submitted the requirements of s 476(4) should be understood in the light of what was decided by the Full Court in Minister for Immigration & Multicultural Affairs v Rajamanikkam [2000] FCA 1023. There the Full Court (Kiefel, North and Mansfield JJ) said in relation to adverse credibility findings against an applicant for a protection visa that “there is no reason in principle why a finding of fact upon which that conclusion as to credibility is made should not constitute a particular fact as that expression is used in s 476(4)(b)”. It continued by saying that “there is no reason in principle why, if it is shown that that fact did not exist, the ground of review available under s 476(1)(g) and (4)(b) should not be made out”. The Full Court emphasised that whether or not such a finding does so qualify depended on the circumstances of a particular case. For the applicant it is also submitted that this is a case where an accumulation of difficulties with the applicant’s evidence has led to its rejection so that it is sufficient to show that the Tribunal’s errors have played a part in its reasoning: Rajamanikkam at par 19 – 24, 49.  Two errors of particular facts were relied upon in oral argument for the applicant in this respect.

    Date of joining the LTTE

24. In its reasons the Tribunal found that the applicant in his oral evidence had stated that he “joined the LTTE in the early 1990s and became a full member two years later…  he left two years after that”.  It is said that finding is of a statement that does not exist and that the Tribunal apparently relied on it to find that the applicant had made different claims.

25. That finding appears at the end of the following passage:

    “Firstly, the applicant made different claims about his association with the LTTE.  In his initial statement he stated that his brother joined in the late 1980s and that he joined some time later, no date given.  In his interview with the Delegate he was asked about the length of time he had been associated with the LTTE.  He responded initially by stating that he had been with them for a long period of time and at another stage in the interview he stated that he was with them for a much shorter period.  He also said that he joined the LTTE “probably after 1990” and was allowed to leave then in the mid 1990s.  He stated at another stage in the interview that his father was killed in the 1980s when he and his brother were with the Tigers.”  (Then follows the sentence referred to above)

    It is apparent that the sentence relied upon, if without foundation, was not the only foundation of the Tribunal’s reasoning in that paragraph.

26. At the hearing before the Tribunal the applicant stated that from 1990 he was working with the LTTE and became a full-fledged member in 1993.  Queried further by the Tribunal, he said he had first helped the LTTE in 1988 and became a full member in 1993, departing in 1995.  In his interview before the delegate the applicant had stated that he joined the LTTE “probably after 1990”.

27. In these circumstances and after examination of the relevant references in the Tribunal’s reasons as a whole it cannot be said that the Tribunal’s conclusion was not open to it.  At worst it would be a slight misquote not to be read with too fine an eye tuned to error and at best as a finding of fact open on the conflicts in the evidence.

28. Some reference was made to other evidence relating to the applicant’s attempts to leave the LTTE and to what he did after he left the LTTE.  These were not pressed in oral argument.

    Religion

29. Argument for the applicant under this ground then focuses on the Tribunal’s findings in relation to the applicant’s religion.  The precise terms of the finding have been set out above.

30. In his application for the protection visa the applicant claimed to be of the Hindu religion.  The relevant passage from the reference from the applicant’s parish priest was as follows:

    “This is to state that Mr Shanmuganathan Sathianathan residing in the above address is attached to my parish, and borns (sic) to a well practicing (sic) Christian family.”

31. At the second hearing before the Tribunal the applicant explained that his father was Christian and his mother was Hindu and he had one sister married to a Catholic.  He stated he had been to both the Christian church and the Hindu temple but that he always behaved according to Hindu practices.

32. It is submitted for him that the findings by the Tribunal on his religion in the quoted passage are findings of particular facts which do not exist in that the applicant did not make the statement so found in the letter or give the explanation as found.  It is submitted these findings were crucial in the finding by the Tribunal that the applicant’s evidence was unworthy of belief.  It is submitted for the respondent that it was open to the Tribunal on this evidence to find there was a conflict in the evidence.  The submissions for the respondent say the reasons of the Tribunal should not be read over-zealously.

33. The particular facts for which it is said there was no evidence are (1) that the letter from the parish priest said the applicant was a Christian and (2) the applicant claimed to be both Hindu and Christian.  As to (1), the letter provided evidence that the applicant had been born to a Christian family.  Tendered in connection with the applicant’s case, it was in conflict with the applicant’s claim to be of the Hindu religion.  It was evidence from which, on a reading open from it, the finding in (1) could be supported from the evidence.

34. As to (2), the evidence established the applicant behaved according to Hindu practices but also had been to the Christian church.  The evidence arguably established a position in relation to the applicant’s religion that he was not only a Hindu but came from a Christian family and had attended a Christian church.  It would be reading the Tribunal’s reasons over-zealously to conclude there was no evidence to support the Tribunal’s conclusion that the applicant was, contrary to his initial claim, both a Hindu and Christian.

35. In my view, while the conclusions of the Tribunal could have been expressed with greater exactitude with reference to the evidence from which they came, it cannot be said the no evidence ground is made out in relation to them.

    Conclusion

1. For these reasons I consider the application should be dismissed.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice R D Nicholson.

Associate:

Dated:             19 September 2000

Counsel for the Applicant:	Mr H Christie
Counsel for the Respondent:	Mr P Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	8 August 2000
Date of Judgment:	19 September 2000