Selvarajah, Edward Joy v Minister for Immigration and Multicultural Affairs

[1998] FCA 1491

FEDERAL COURT OF AUSTRALIA

MIGRATION - appeal from Refugee Review Tribunal (“RRT”) decision refusing refugee status – whether applicant had a well founded fear of persecution – whether the findings made in relation to persecution were not “logically sustainable” – whether the inconsistencies in the evidence relied by the RRT were material  - whether the process of such scrutiny was an “incorrect procedure” which amounted to “denying the applicant substantial justice”

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

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, cited
Epeabaka v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 397, cited
Kopalapillai v Minister for Immigration and Ethnic Affairs (unreported, Full Federal Court, 8 September 1998), cited
Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300, cited
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567, cited
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, cited

EDWARD JOY SELVARAJAH v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 662 OF 1998

O’CONNOR J
SYDNEY
24 NOVEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 662  of   1998

BETWEEN:	EDWARD JOY SELVARAJAH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		O'CONNOR J
DATE OF ORDER:		24 NOVEMBER 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

The application be dismissed with 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	NG 662 of 1998

BETWEEN:	EDWARD JOY SELVARAJAH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	O'CONNOR J
DATE:	24 NOVEMBER 1998
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

This is an application for the review of a decision of a member of the Refugee Review Tribunal (“the Tribunal”) dated 12 June 1998 affirming the decision of the delegate of the Minister for Immigration and Multicultural Affairs not to grant a protection visa.

On 20 August 1998, Lindgren J granted leave to the applicant to file an amended application which was filed on 2 November 1998.  The grounds of the amended application are:

1. That the Tribunal erred in finding that the applicant did not have a well founded fear of persecution from the authorities of the Sri Lankan State, when evidence given to and accepted by the Tribunal could not logically sustain that conclusion.  Rather the evidence before Tribunal was to the effect that the authorities consistently seriously harassed and on occasion tortured the applicant.

1. That the Tribunal erred in ignoring that the applicant had a well founded fear that the authorities could not protect him from the LTTE, when the evidence by the applicant logically required the finding of persecution by the LTTE.

1. That the Tribunal erred in scrutinising the various statements made by the applicant to find inconsistencies in the evidence.  None of the inconsistencies were material, and such scrutinising was an incorrect procedure in the making of a decision under the Migration Act 1958 (Cth) (“the Act”) and accordingly the Tribunal did not accord “substantial justice” in considering the applicant’s evidence.

LEGISLATIVE CONTEXT

The relevant provisions of the Act in respect of this application are as follows:

“Refugee Review Tribunal’s way of operating

420.  (1)  The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

(2)  The Tribunal, in reviewing a decision:

(a)      is not bound by technicalities, legal forms or rules of evidence; and

(b)      must act according to substantial justice and the merits of the case.

...

Application for review

476.  (1)  Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

(a)that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

…

(e)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 to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;

…

(g)that there was no evidence or other material to justify the making of the decision.

(2)  The following are not grounds upon which an application may be made under subsection (1):

(a)that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b)that the decision involved an exercise of power that is so unreasonable that no reasonable person could have so exercised the power.

…

(4)  The ground specified in paragraph (1)(g) is not to be taken to have been made out  unless:

(a)the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or

(b)the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.”

A criterion for the grant of a protection visa is that Australia has protection obligations in relation to the applicant because he is a refugee in accordance with Article 1A(2) of the Convention, as amended by the Protocol, that is, he is a 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, is unable or, owing to such fear, is unwilling to return to it.”

The applicant seeks an order that the decision under review be set aside and remitted back to the Refugee Review Tribunal for reconsideration according to law.

FACTUAL BACKGROUND

The applicant is a citizen of Sri Lanka who arrived in Australia on 17 February 1997.

The applicant was born in Jaffna;  he was married in Colombo in June 1992 and his children were born there in April 1993 and December 1996.  He studied in Colombo in 1983 and then in India from September 1984 until April 1989.  The applicant’s passport was issued on 22 January 1997 annotated “cease to be valid on return to Sri Lanka” and “NONIC …”;  his Australian visa was issued on 31 January 1997 and he left Sri Lanka legally on 16 February 1997.  The applicant has tertiary qualifications and was a self-employed businessman from 1991 until January 1997.

The applicant claims that while he was at university he was harassed and humiliated by students of the Liberation Tigers of Tamil Eelam (“LTTE”) because he refused to be recruited to the LTTE.  The applicant then went to India to complete his studies.  When the LTTE tried to recruit him there he returned to Colombo and set up his own business in 1989 transporting goods to Jaffna and Trincomalee.

Before he married in 1992 the applicant claims that on his travels he was threatened by the LTTE;  it suspected him of contacts with the Crime Detection Bureau and of passing information about the LTTE to the security forces.  In Colombo he was summoned by the police several times about the LTTE’s movements.  He was arrested, questioned and assaulted on numerous occasions.

After 1991 he travelled about six or seven times a year.  He had to pay the LTTE so that he could transport goods to Jaffna and he was delayed at army checkpoints because it was assumed that people like him were taking contraband to Jaffna;  often he bribed soldiers or gave them some goods to be allowed to proceed.  The applicant claims that on three occasions he was detained and assaulted in Vavuniya by security forces before being allowed to proceed.  On four occasions he was detained and assaulted at a particular police station in Colombo;  he was released on payment of bribes.

In Jaffna the applicant was pursued by the LTTE to help with paperwork and the LTTE threatened the applicant’s wife.

After the transport of certain goods to Jaffna was banned, the LTTE approached the applicant to smuggle items into Jaffna;  he refused and was assaulted.  The LTTE threatened to refuse to allow his wife to go to Colombo for medical treatment so he agreed and did this work until Jaffna was captured by the Army in 1995.  The applicant also transported banned generators to Jaffna on demand from the LTTE and for profit.

In December 1996 the applicant claimed that he and an army officer stationed in Vavuniya obtained a pass to send three generators there;  they altered the pass to read thirty.  The applicant was stopped and his goods were thoroughly searched by a different army officer near Vavuniya.  The applicant claimed the pass was genuine and could be checked with the first army officer.  After this was done the applicant was released and told to go back to Colombo.  The security forces found batteries in his bicycle at Vavuniya and assumed he had been transporting banned goods for some time.  He was accused of being a LTTE supporter and questioned about LTTE activities in Colombo;  his parents paid a large bribe for his release.

The applicant said he then paid a Sinhalese agent to get a passport for him.  He went to the Australian High Commission in Colombo and applied for a visa and then paid an immigration officer to allow him to leave Sri Lanka.

The applicant applied to the Department of Immigration and Multicultural Affairs for a protection visa on 5 March 1997.  The delegate’s decision refusing the application was made on 23 April 1997.  The applicant applied for a review of that decision by the Tribunal on 13 May 1997.  The application for review was rejected by the Tribunal and his application for protection visa refused on 12 June 1998.

TRIBUNAL HEARING

In a submission made prior to the Tribunal hearing the applicant claimed that he feared persecution from the security forces because he is a Tamil and because he was caught smuggling banned goods to a LTTE area which gave him an imputed LTTE profile.

At the Tribunal hearing the applicant claimed he would be caught and killed by the army if he returned to Sri Lanka because he is a suspected LTTE supporter as he transported goods for the LTTE for years and didn’t give the army information about the LTTE.  He claimed he did not have any personal contact with the LTTE;  people told him to take things and give them to others.  He also had to pay taxes to the LTTE.  The applicant also claimed to fear harm from the LTTE because he betrayed it in telling the army that the generators he smuggled were for the LTTE and that he transported banned goods for the LTTE on demand.

The Tribunal asked the applicant about some of his written claims.  In relation to the applicant’s numerous arrests the Tribunal observed that the applicant had longstanding links with Colombo and as such he would not be of interest to the Sri Lankan authorities.  The applicant replied that he still had to be checked out but that his links to Colombo and bribes allowed him to be released.

The Tribunal noted that his claims in relation to the LTTE’s interest in him were inconsistent and implausible.  For example, he claimed he was suspected by the LTTE of passing information to the army because he was able to pass through their checkpoints easily yet the LTTE demanded that he transport goods for them from 1991 until December 1996.  In response the applicant restated his claim adding that he only took goods as far as Vavuniya after October 1995 and he was not paid by the LTTE, for the goods or the transport.

The Tribunal queried the applicant’s evidence about the most recent incident involving the transport of the generators.  The LTTE asked for thirty generators so he paid the issuing army officer to alter the pass.  The pass was queried at the checkpoint near Vavuniya by other army officers whereupon the applicant said it was genuine and suggested checking with the issuing officer.  The issuing officer said he had to make further enquiries.  The applicant was later arrested and questioned about who the generators were for and who altered the pass.  The issuing officer denied altering the pass although the applicant claimed that issuing officer assisted his release from detention.  The applicant claimed the issuing officer did confess to altering the pass and he did not give the name of the issuing officer; that he was released on payment of a bribe;  that he identified the brokers of the generators who were taken into custody and who betrayed the applicant by telling the army that the applicant was involved with the LTTE and transported things for it.  The applicant also claimed he was tortured and threatened during this period of detention.

An adviser for the applicant made submissions to the Tribunal in relation to the mistreatment of the applicant by the Sri Lankan authorities and in relation to the credibility of the applicant.

TRIBUNAL’S DECISION

The Tribunal made the following findings.

The Tribunal found that the applicant was not a credible witness.  The Tribunal put to the applicant that it had doubts about the credibility of his claims;  no claims were made when he sought a protection visa, nor in response to the Department’s letters addressed to the applicant.  The Tribunal said the claims in his first statement were somewhat different to those made later, including the claims made in relation to the most recent incident of the generators.  The Tribunal did not accept that the applicant would delay the submission of his first statement, more than three months after the protection visa application was lodged, or delay in correcting significant errors in the first statement promptly.  The Tribunal also did not accept that the applicant would fail to respond to the Department’s reminder about submissions, if his serious claims of mistreatment and fears of persecution were true.  The Tribunal found the applicant’s evidence included exaggerated assertions and contradictory statements which diminished his credibility.

The Tribunal accepted that the applicant, a Tamil born in Jaffna was educated there until 1982 and then in Colombo until he went to India in September 1984.  The Tribunal also found it plausible that LTTE supporters at school in Sri Lanka or at university in India may have harassed or threatened the applicant, but he avoided recruitment by the LTTE and was never harmed during this time.

The Tribunal found the applicant’s evidence about his usual place of residence to be inconsistent and contradictory.  The repetition of the one Jaffna address before and after January 1991 on the protection visa form suggested to the Tribunal that he changed his mind about the information he decided to provide there and his first statement suggests that he at least lived mainly in Colombo, visiting Jaffna and later Vavuniya on frequent business trips.  His second statement stated that he and his wife and children lived in Jaffna and he visited Colombo on business yet he also claimed that he avoided doing the LTTE’s paperwork by telling them he was just visiting the north.

The Tribunal did not accept that the applicant transported (illegal) goods for the LTTE between 1991 and December 1996.  The Tribunal found the applicant’s claims about his relationship with the LTTE implausible and contradictory.  He claimed that the LTTE was suspicious of him, in particular that he was giving the army information about the LTTE as he passed through army checkpoints readily, yet he claimed that they approached him and that he was trusted to transport valuable and often illegal goods for them for many years.

The Tribunal found the applicant’s claims that he was first arrested in August/September 1991 in Colombo in connection with Rajiv Gandhi's assassination (May 1991), inconsistent, implausible and vague.  The applicant returned from India in April 1989 and only stayed two months in Colombo before returning to Jaffna where he continued to live;  he did not set up his own business in Colombo until January 1991.  In this situation the Tribunal found his claim implausible.  The Tribunal also found it implausible that the applicant was detained, for the first time in his life and for involvement in such a major incident, but did not remember the details more accurately.   The Tribunal found it implausible that the authorities would arrest, detain and torture the applicant for weeks because he was one of many thousands that had been to India in previous years.

The Tribunal did not accept that the applicant was arrested, detained and assaulted numerous times by the security forces after 1991, or that if he was, that these incidents were serious.  His claims were initially very vague and they were highly inconsistent.

Finally the Tribunal did not accept the applicant’s account of the generators incident in early December 1996 and the subsequent developments.  Even if the Tribunal accepted the account it noted that there was nothing persecutory in the authorities taking the matter seriously and investigating it.  The Tribunal found the applicant’s oral account of the events very confusing and contradictory.  The Tribunal did not accept as plausible that the applicant would have been allowed to return to Colombo in early December or released after being detained for a week in early January 1997 had he been seriously suspected of assisting the LTTE or of some crime associated with the alteration of the pass for the generators.

In relation to the submission made to the Tribunal that some Tamils disappear if they cannot satisfy the authorities as to their identity and their bona fides the Tribunal accepted that in some cases proper procedures are not followed by the security forces;  bribes are demanded, relatives may not be informed, people may not be released as quickly as possible and there is evidence that some of those in detention are mistreated.  There is a lot of information available and it is generally agreed that those most at risk are young Tamils from the north, newly arrived in Colombo without good reason, without links in the city and without anyone to vouch to their bona fides.  However the Tribunal found that the applicant is not such a person.  He is in his thirties, he is married with children, he went to school in Colombo for two years, he married there and his children were born there, his parents have lived and worked in Colombo, he has a business there which employs two people and he and his family have lived there at least since late 1995 if not much earlier.

The Tribunal concluded as follows:

“The Tribunal accepts that the emergency regulations are required given the ongoing civil war and the frequency of major terrorist attacks in Colombo, but the Tribunal is not satisfied that the Applicant has a well-founded fear of persecution, from the authorities, within the meaning of the Convention.”

SUBMISSIONS OF THE PARTIES

The amended grounds of this application has two bases –

(a)       That the findings in relation to persecution were not “logically sustainable” and

(b)that  the inconsistencies in the evidence, relied on by the Tribunal, were not material.  The process of such scrutiny being an “incorrect procedure” and amounted to “denying the applicant substantial justice”.

As the respondent pointed out at the hearing, the submissions made by the applicant appear to supplement and, to an extent modify, these grounds.  Grounds 1 and 2 of the amended application were not, in the end, pursued as particularised and a further ground of review is raised, ie., the failure to apply the “what if I am wrong” approach referred to by Kirby J in Minister for Immigration and Ethnic Affairs vWu Shan Liang (1996) 185 CLR 259 at 293. However no challenge was made to this course by the respondent and all matters argued appear to come under the broad umbrella of incorrect procedures leading to a denial of substantial justice (s 420(1)(b) and s 476(1)(a)).

The applicant challenges the basis and method by which the decision maker finds facts which both reject his credibility and each of the factual matters on which the application is based.  The applicant relied on the principle enunciated by Finkelstien J in Epeabaka v Minister for Immigration and Multicultural Affairs  (1997) 150 ALR 397 at 406 where his Honour said:

“The tribunal would not be acting rationally or reasonably if it made a finding of fact upon which its decision was based that was not supported by probative evidence.   The tribunal would also fail to act rationally and reasonably if it failed to rationally consider the probative evidence that was before it.”

The applicant, however, does not submit in this case that the inconsistencies found by the Tribunal did not exist but argues that the finding as to credibility had “obscured the Tribunal’s view of the consistencies in the applicant’s evidence” by concentrating on inconsistencies.   This case is therefore not like Epeabaka where there was found to be misapprehension by the Tribunal as to known and accepted facts.  No misapprehension is alleged here.

As the Full Court said in Kopalapillai v MIMA (unreported, Full Federal Court,  8 September 1998) it is difficult to demonstrate any relevant ground of review where the decision maker is merely not satisfied in relation to aspects of the applicant’s case.

Here the decision maker had regard to a number of inconsistencies in the applicant’s case.  She came to the conclusion that the applicant’s claims of persecution were “implausible”.   In my view this conclusion was open on the evidence.

The respondent submits that both Epeabaka and Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 (the authority on which the claim of lack of “substantial justice” was based) were wrongly decided.  Because of the views expressed above, this submission need not be considered.   However, I would, if it were an appropriate case, follow the majority decision in Eshetu.

In both Wu and Minister for Immigration and Ethnic Affair v Guo (1997) 144 ALR 567 at 59 Kirby J stated the need for a speculative approach by the Tribunal in determining the chances of persecution of a particular applicant – called the “what if I am wrong?” approach.   The applicant claims this decision maker did not stand back from the particularity of the case and consider it in its entirety.   It has, the applicant says, wrongly focussed on what it considers the implausibility of the applicant’s particular claims without giving consideration to the possibility that any of its findings were inaccurate.

The majority of the High Court, however, in Guo did not regard such an approach as necessary in all cases.

At page 579 they said:

“For the reasons that we have given, the tribunal was entitled to weigh the material before it and make findings before it engaged “in any consideration of whether or not Mr Guo’s fear of persecution on a Convention ground was well-founded”.   Moreover, given the strength of some of the tribunal’s findings – for example, “the treatment the applicant received on return to the PRC in October 1992 [is] reflective of punishment for illegal departure and not because of his political activities, application for refugee status or contact with Australian officials”, “the applicant’s illegal departure in 1993 will not result in an imputed political profile”, “these matters will not result in persecution to the applicant for Convention reasons if returned to China” – the tribunal was not bound to consider the possibility that its findings were inaccurate or that the punishment was Convention-based.”

This is just such a case.  This decision maker had no doubt as to the findings she made.  As the High Court said, once the Tribunal reached that firm conclusion it was not bound to consider whether its findings might be wrong.  In fact it saw such a process as irrational.

The applicant also argued that the decision maker had not considered general objective evidence like DFAT reports in coming to its conclusions.  However at page 13 of its decision it did refer to such evidence in a general way by saying -

“There is a lot of information available from a range of sources on these matters but it is generally agreed that those most at risk are young Tamils from the north, newly arrived in Colombo without good reason, without links in the city and without anyone to vouch for their bonafides.  The Applicant is not such a person.”

The applicant also submitted that, on the authority of some obiter remarks of McHugh J in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, at 259, the conclusion that this applicant had no well founded fear of persecution from the authorities was wrongly made because of the factual matters which had been accepted by the Tribunal.

The respondent, however, referred to those paragraphs of his Honour’s judgment at 258, which preceded the paragraphs relied on by the applicant, namely:

“Conduct will not constitute persecution, however, if it is appropriate and adapted to achieving some legitimate object of the country of the refugee.  A legitimate object will ordinarily be an object whose pursuit is required in order to protect or promote the general welfare of the State and its citizens.   The enforcement of a generally applicable criminal law does not ordinarily constitute persecution (115).   Nor is the enforcement of laws designed to protect the general welfare of the State ordinarily persecutory even though the laws may place additional burdens on the members of a particular race, religion or nationality or social group.  Thus, a law providing for the detention of the members of a particular race engaged in a civil war may not amount to persecution even though that law affects only members of that race (116).”

This appears to be the case here where the detention of Tamils from time to time is part of the emergency strategy connected to the civil war in that country and will only amount to persecution if inappropriately administered.   None of the grounds pleaded and/or argued have been made out.

The application is dismissed with costs.

I certify that this and the preceding eleven (11) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Connor

Associate:

Dated:             24 November 1998

Counsel for the Applicant:	S C Churches SC
Solicitor for the Applicant:	Jayram & Associates
Counsel for the Respondent:	R Beech-Jones
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	23 November 1998
Date of Judgment:	24 November 1998