Sivaram v Minister for Immigration and Multicultural Affairs

[1999] FCA 853

FEDERAL COURT OF AUSTRALIA

Sivaram v Minister for Immigration & Multicultural Affairs [1999] FCA 853

MIGRATION – application to review decision of the Refugee Review Tribunal – whether failure to observe procedures required by the Act – whether failure to comply with s 430(1) – whether reasons for decision set out findings on all material questions of fact.

Migration Act 1958 (Cth), ss 430, 475

Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 cited
Logenthiran v Minister for Immigration and Multicultural Affairs [1998] FCA 1691 cited
Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247 cited
Minister for Immigration and Ethnic Affairs v WuShan Liang & Ors (1996) 185 CLR 259 cited
Collector of Customs v Pozzolanic (1993) 43 FCR 280 referred to

Matter No. N 66 of 1999

ANANDARAJAH SIVARAM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

VON DOUSSA J
ADELAIDE (HEARD IN SYDNEY)
25 JUNE 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 66 OF 1999

BETWEEN:	ANANDARAJAH SIVARAM Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	VON DOUSSA J
DATE OF ORDER:	25 JUNE 1999
WHERE MADE:	ADELAIDE (HEARD IN SYDNEY)

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 Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 66 OF 1999

BETWEEN:	ANANDARAJAH SIVARAM Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	VON DOUSSA J
DATE:	25 JUNE 1999
PLACE:	ADELAIDE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

1. This is an application under s 475 of the Migration Act 1958 (Cth) (the Act). The applicant seeks a review of a decision of the Refugee Review Tribunal (the RRT) dated 4 January 1999 which affirmed a decision made by a delegate of the respondent refusing the applicant a protection visa on the ground that he is not a person to whom Australia has protection obligations: s 36(2) of the Act. The RRT was not satisfied that the applicant had a well founded fear of being persecuted for a Convention reason if he returned to the country of his nationality, and for that reason did not come within the well known definition of a “refugee”.

2. The amended application to this Court seeks to have the decision of the RRT set aside on the ground that procedures that were required by the Act to be observed in connection with the making of the decision were not observed: s 476(1)(a) of the Act. In particular it is alleged that the RRT failed to prepare a written statement that complied with the requirements of s 430(1) of the Act which provides:

   “Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

   (a)      sets out the decision of the Tribunal on the review;
   (b)      sets out the reasons for the decision;
   (c)       sets out the findings on any material questions of fact; and

   (d)refers to the evidence or any other material on which the findings of fact were based.”

3. The applicant is a Sri Lankan Tamil from Valvettiturai, a town in Jaffna in northern Sri Lanka.  Counsel for the applicant contended that the RRT erred by failing to address and make findings about the information before it that went to the risk of the applicant being arrested or detained in Colombo where it was likely that he would reside if he were returned to Sri Lanka.

4. Counsel for the appellant relied on decisions of Full Courts of this Court in Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24; Logenthiran v Minister for Immigration and Multicultural Affairs [1998] FCA 1691; and Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247. In Paramananthan it was held that a failure by the RRT to make findings on material before it that bore directly upon matters in relation to which the asylum seekers expressed fear and spoke of mistreatment constituted a failure to comply with s 430(1)(c) which in turn constituted a ground of review under s 476(1)(a): see in particular Wilcox J at 31 and Lindgren J at 37. In Logenthiran the Court set aside a decision of the RRT on the ground that the RRT had failed to deal with, or make any findings in relation to, two claims of importance in the case presented by Mr Logenthiran in support of his application for a protection visa on the ground that there had been a failure to comply with s 430 of the Act, which enlivened the ground of review provided for in s 476(1)(a): see Wilcox and Lindgren JJ at 11-13 and Merkel J at 1. These two decisions were followed in Sellamuthu where the Court confirmed that the RRT must consider all of the substantial claims in the information in support of them put forward by the applicant: see Wilcox and Madgwick JJ at paras 19 & 22 and Hill J at para 51.

5. The ground upon which review is sought makes it necessary to identify the grounds on which the applicant asserted that he was a refugee, and then to consider the reasons for decision of the RRT.

6. As will appear, the RRT did not accept the applicant as a witness of truth.  However, it did find the applicant to be a citizen of Sri Lanka who was over forty years of age (consistent with his asserted date of birth on 23 October 1957), that he was of Tamil ethnicity, and that his family home in Valvettiturai was destroyed in 1984 following which he and his family moved to Tamil Nadu in India and set up residence in “Trichy” (Trichonopoly or Tiruchirappalli) in 1987.  The RRT also found that the applicant does not speak Sinhalese.

7. The applicant arrived in Australia in October 1995 travelling on an Indian passport in his name.  In support of his claim for a protection visa he said that the passport was false, that he was a national of Sri Lanka, and that he had a well founded fear of persecution if he were to return to Sri Lanka for reasons of his Tamil race and his imputed political opinion as a suspected supporter of the Liberation Tigers of Tamil Eelam (LTTE).  In a submission made by solicitors on his behalf to the RRT dated 6 October 1998 the claims made by the applicant were summarised as follows:

   “•Mr Sivaram is a Tamil from Valvettiturai in Jaffna

   •Mr Sivaram knew people who later became senior LTTE cadres (his evidence included the assertion that he had been to school with a former deputy leader of the LTTE)

   •Mr Sivaram was detained by the army in 1984 and 1985 and was interrogated and tortured by the army

   •Mr Sivaram fled to India in 1987

   •Mr Sivaram’s relative Vikneeswaran was involved with the LTTE in India and wanted by the police following the death of Ghandi in 1991

   •Mr Sivaram and his father were arrested by the Indian police and tortured in detention

   •Mr Sivaram’s father was accused in a paper of being related to Prabakaran (the leader of the LTTE)

   •Mr Sivaram decided to leave India and bought an Indian passport

   •Mr Sivaram’s family in Valvettiturai were recently questioned about him.”

8. The reasons for decision of the RRT are long and very detailed.  The RRT rejected the applicant’s credibility entirely.  The RRT noted that false documents had been produced by the applicant in support of his claims.  The RRT rejected each of the claims set out above save for the claim that the applicant is a Tamil from Valvettiturai in Jaffna, and that he arrived in Australia on a false passport.  The latter finding meant that he had no right of entry or residence in India.

9. The rejection of the applicant’s specific claims of persecution on account of his involvement with the LTTE led the RRT to the following further conclusions:

   “I therefore do not accept that the Applicant ever came to the attention of the authorities in Sri Lanka before his family left for India in 1987, nor do I accept that either he or any other member of his family has been involved in activities in India which might bring him to the attention of the Sri Lankan authorities if he were to return to Sri Lanka now or in the foreseeable future.  Having regard to the overall view I have formed of the Applicant’s credibility I do not accept his evidence that a friend of his who lived in Valvedditturai was interrogated by the Sri Lankan CID and asked about him in August 1995, nor do I accept that his wife’s sisters in Sri Lanka have been subjected to questioning with regard to the whereabouts of their relatives.  I likewise do not accept that the Sri Lankan Army has asked questions about the whereabouts of the owners of the Applicant’s family’s house in Valvedditturai.  As referred to above, the Applicant in any event contradicted himself as to whether there was anything of his family’s house left standing.  I do not accept that there is any reason for the Applicant as an individual to attract the attention of the Sri Lankan authorities on his return to Sri Lanka.”

10. Before this Court counsel for the applicant did not seek to challenge the RRT’s rejection of the applicant’s credit.

11. Having comprehensively rejected virtually all of the claims of the applicant, the RRT then considered whether on the findings that it had made, namely that he was a Sri Lankan Tamil from Valvettiturai, aged over forty, who did not speak Sinhalese, he might nevertheless have a well founded fear of being persecuted for a Convention reason if he were to return to Sri Lanka now or in the foreseeable future.  In so doing, the RRT correctly approached its task: see Sellamuthu at para 14.

12. Based on a Department of Foreign Affairs and Trade (DFAT) cable the RRT found that the applicant would be able to return to Sri Lanka without hindrance at the airport.  In the course of giving its reasons for this conclusion the RRT observed that whilst there was information that in isolated cases older people as well as young Tamil men and women had been arrested at the airport “it is impossible to conclude that the persons in question were arrested by reason of their race (Tamil) or imputed political opinion (support for the LTTE) rather than because the authorities had cause to suspect them of having committed specific offences.”  No criticism is made of the finding that the applicant could pass through the airport without hindrance: the criticism is in respect of the RRT’s process of reasoning that led it to conclude that the applicant did not have a well founded fear of being persecuted for a Convention reason once he had left the airport.

13. The RRT observed that the available country information “suggests that it is young Tamils recently arrived from the North or the East who are most at risk of being arrested in Colombo.”  The RRT then addressed specific arguments that had been made on the applicant’s behalf, namely that it would not be reasonable to expect him to relocate in Colombo because he did not speak Sinhalese and because he would face a risk of arrest as a Tamil from the Jaffna Peninsula, and more specifically from Valvettiturai which was a town from which Prabhakaran and other senior leaders of the LTTE had come.  The RRT dismissed these submissions saying:

    “I do not consider that the Applicant will be at particular risk of arrest merely because he comes from Valvedditturai and I do not accept that there is a real chance that he will be arrested, detained or questioned by the Sri Lankan authorities in Colombo merely because he is a Tamil who comes from Jaffna.  As I put to the Applicant in the course of the hearing before me, all the information available to me suggests that it is young Tamils recently arrived from the North or East who are most at risk of being arrested in Colombo…The Applicant is aged over 40 and therefore can no longer be regarded as a ‘young Tamil’ nor, if he returns to Colombo now, will he have recently arrived from the North or East.

    I do not consider that the fact that the Applicant is unable to speak Sinhalese presents an obstacle to his relocation to Colombo.  As indicated in a report from the Sri Lanka Monitor of May 1995 referred to by the Applicant’s representative in his submission of 6 October 1998, there are at least 350,000 Tamils in Colombo.  While the Applicant may not have immediate family in that city, he has shown his preparedness in the past to relocate to cities where he has no family support in order to obtain work. …”

14. The RRT then addressed a further argument that had been made on the applicant’s behalf, namely that he could face extortion by reason of his race or nationality and his imputed political opinion.  The RRT referred to country reports on which the applicant’s representative had relied in support of this submission and noted that the risk of extortion was one suffered by “persons in detention by unscrupulous police personnel” and proceeded:

    “Since I do not accept that there is a real chance, as distinct from a remote possibility, that the Applicant will be arrested or detained by the Sri Lankan authorities if he returns to Sri Lanka, it follows that I do not accept that there is a real chance that money will be extorted from him in the fashion described in the report referred to by the Applicant’s representative.”

15. On these findings the RRT then expressed its ultimate conclusion that it was not satisfied that the applicant had a well founded fear of being persecuted for a Convention reason if he returned to Sri Lanka, and affirmed the decision not to grant a protection visa.

16. The RRT’s reasons for decision were structured in the following way.  First there was a brief “Background” followed by a description of the “Legislative Framework”.  Then the RRT recorded at length the evidence received by it under the headings “The Applicant’s evidence” and “Background” in which the ongoing conflict between the Government of Sri Lanka and the LTTE was described.  Thereafter under the heading “Findings and Reasons for Decision” the RRT expressed its reasons for rejecting the applicant’s credit, and set out the findings which I have summarised above.  In the course of describing the conflict between the Government and the LTTE reference was made to country reports dealing with human rights abuses.  Particular reference was made to a DFAT cable which said that a tighter security situation in Colombo since October 1997 was felt especially by members of the Tamil community who were subjected at times to round-ups or “cordon and search” operations if an LTTE attack was thought to be imminent, or immediately after one had taken place, and at checkpoints throughout Colombo at which everyone is required to produce evidence of their identity.  The RRT referred to a report from the Danish Immigration Service dated April 1997, saying that the report stated:

    “…that those without identity cards or other proof of identity, without any relatives in Colombo or speaking only Tamil, were at particular risk of being detained at checkpoints.   However, all Tamils were viewed as potential LTTE members by the police and armed forces.  Young Tamil men and women who had recently arrived from the North or the East were particularly at risk of being detained.”

17. There was also information in a DFAT cable describing difficulties which Tamils from outside Colombo might encounter in finding accommodation.  The cable noted that lodges at which Tamils visiting Colombo tended to stay were subject to frequent raids by security forces.

18. Neither the report from the Danish Immigration Service, nor other reports about the general situation in Sri Lanka to which the RRT had been referred in written submissions made to it on the applicant’s behalf, were referred to in the section of the decision appearing under “Findings and Reasons for Decision”.

19. Counsel for the applicant contends that the RRT erred in failing to make specific findings in respect of a number of factual assertions about the position of Tamils in Sri Lanka, and Colombo in particular, to be found in the report from the Danish Immigration Service, and also in the British Refugee Council report “Sri Lankan Tamils, the Home Office and the forgotten civil war” (February 1997), a passage from which had been quoted in one of the submissions made to the RRT on the applicant’s behalf.

20. The full text of the Danish Immigration Service report emphasised that identity cards had to be shown at all contacts with authorities, at checkpoints and for access to official buildings, and that identity cards would show where the holder was born, and would generally indicate by the name whether the person was Tamil, Sinhalese or Muslim.  The report said some NGOs were of the view that if the name of a person stopped at a checkpoint showed the person to be a Tamil that would be sufficient for the person to be questioned further, while other NGOs thought that only Tamils born in Jaffna risked further questioning.  Information from one source suggested that all Tamils faced harassment at checkpoints, but particularly young men.  Another source suggested that Tamils who did not speak any language other than Tamil were at risk if stopped at a checkpoint, and a number of sources had reported to the Danish authority that Tamils not originating from Colombo would be questioned about the purpose of their stay in Colombo, and if a police officer or soldier became suspicious they could be arrested and taken to the nearest police station.

21. The passage from the British Refugee Council report to which the RRT had been referred reads:

    “Despite the attempts by the government to promote human rights, the culture within the Sri Lankan security forces remains suspicious of Tamils-in particular young males, although all Tamils, whether male or female, young or old, are at risk.  That Tamils should come under suspicion because of the actions of the LTTE is understandable.  What is concerning is the continued use of detention without trial, and in contravention of the Emergency Regulations; of torture to extract confessions, often in a language not understood or spoken by the signatory; and of extrajudicial executions which are linked to the security forces.  While there has been a systematic reduction in human rights violations, particularly against the Sinhalese population, there continues to be human rights violations in Colombo, particularly against Tamils, which the government appears to be unwilling or unable to prevent.  It is for this reason that Colombo should not be assumed to be safe for Sri Lankan Tamils.”

22. The passage from the British Refugee Council report was referred to by Wilcox J in Paramananthan at 31, and in that case the failure of the RRT to address and make findings about facts alleged in that report was held to constitute a failure to comply with s 430(1)(c) of the Act. However, in that case, the allegations of fact in the report were held to bear directly upon matters in relation to which the asylum seeker expressed fears and spoke of mistreatment, including mistreatment of the type which the RRT accepted he had suffered. In the present case however the information in the British Refugee Council report, and also that in the Danish Immigration Service Report, did not have a direct relevance to established incidents of mistreatment suffered by the applicant. In this case those background reports were relevant only to the claim by the applicant that he was a Tamil from Valvettiturai, and on that account would suffer a real chance of persecution were he to return to Colombo, that being the only claim that survived the adverse findings of credit made against the applicant.

23. In considering the reasons for decision of the RRT the Court must bear in mind the observations made in Minister for Immigration and Ethnic Affairs v WuShan Liang & Ors (1996) 185 CLR 259 in the judgment of Brennan CJ, Toohey, McHugh and Gummow JJ at 272. Their Honours, referring to a decision of the Full Court of this Court in Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287 said:

    “It was said that a court should not be ‘concerned with looseness in the language … nor with unhappy phrasing’ of the reasons of an administrative decision-maker.  The Court continued: ‘The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.’

    These propositions are well settled.  They recognise the reality that 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.”  (Footnotes are omitted).

1. In this case, when the reasons for decision are read as a whole, I do not think that the RRT failed to make findings on material questions of fact that were raised before it.  The issue to be determined, as the RRT correctly noted, was whether the applicant had a well founded fear of being persecuted for a Convention reason if he returned to Sri Lanka.  The only ground that remained for consideration was whether the applicant could have a well founded fear of being persecuted because he was a Tamil from Valvettiturai who did not speak Sinhalese, and who was over forty.

2. The RRT addressed the fact that the applicant did not speak Sinhalese, and that he was a Tamil from Jaffna Peninsula, and rejected the arguments that there was a real chance of persecution “merely because” of these matters.  That mode of expression, construed literally, does not exclude the possibility that for other reasons in addition there may be a real chance of persecution.  However, I think it is an unreasonable interpretation to place on the reasons to say that this further possibility was left open and unresolved.  Two paragraphs later in the reasons when rejecting the argument that the applicant might face extortion, the RRT said in plain terms “…I do not accept that there is a real chance, as distinct from a remote possibility, that the applicant will be arrested or detained by the Sri Lankan authorities if he returns to Sri Lanka”.  The risks of persecution described in the reports were risks of arrest or detention, or mistreatment following arrest or detention.  In my view that clear finding determined the material facts relevant to the only claim of the applicant that survived rejection of his credit.

3. In my opinion s 430(1) does not require the RRT to identify every factual assertion made in evidence adduced by an asylum seeker, and to make a specific finding in relation to it. It is sufficient that there is a finding on the material facts to which the evidence was directed. In this case the reports contained evidence that was relevant to the question whether there was a real chance that the applicant would be arrested or detained if he were to return to Sri Lanka, and on that fact I consider the RRT has made a clear finding. Moreover, I think it has sufficiently referred to the evidence or other material in which that finding is based, in particular that the applicant is over forty years of age and is therefore not to be regarded as a young Tamil, nor could he be regarded as someone recently arrived from the north or east if he were to return to Colombo from Australia. Insofar as there may be difficulties for someone who does not speak Sinhalese relocating in Colombo, the RRT has relied on evidence that there are at least 350,000 Tamils in Colombo.

4. In my opinion the applicant has not established that the RRT failed to meet the requirements of s 430(1), and has failed to establish a ground for review under s 476(1)(a).

5. In my opinion the application should be dismissed with costs.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice von Doussa.

Associate:

Dated:            25 June 1999

Counsel for the Applicant:	Mr C Colborne
Solicitor for the Applicant:	Craddock Murray Neumann
Counsel for the Respondent:	Mr R Beech-Jones
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	1 June 1999
Date of Judgment:	25 June 1999