Subramaniam v MIMA

[1998] FCA 305

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 310 of 1997

GENERAL DIVISION

BETWEEN:	ANANDARAJ SUBRAMANIAM Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	CARR J
DATE:	10 MARCH 1998
PLACE:	MELBOURNE

EX TEMPORE REASONS FOR JUDGMENT

INTRODUCTION

The applicant, Mr Anandaraj Subramaniam, applies for review of a decision of the Refugee Review Tribunal (“RRT”) rejecting his claims for recognition of refugee status and the grant of a protection visa.  The applicant is a 44 year old Sri Lankan citizen.  On 5 September 1995, in Colombo, he applied for a visitor visa to Australia.  The visa was granted the next day.  It was valid for 3 months.  The applicant arrived in Australia on 20 September 1995.  His visitor visa was due to expire on 20 December 1995.  On 19 December 1995 the applicant applied for a protection visa.  On 25 July 1996, a delegate of the respondent determined that the applicant was not a refugee and refused the grant of a protection visa.  On 14 August 1996 the applicant applied for review of that decision to the Refugee Review Tribunal which I shall refer to variously as “the RRT” or “the Tribunal”.  On 22 May 1997 the RRT affirmed the primary decision made by the respondent’s delegate.  On 21 November 1997 the applicant applied to this Court for review of the RRT’s decision.

THE STATUTORY FRAMEWORK

The relevant criteria for the grant of a protection visa are set out in s 36(2) of the Migration Act 1958 (“the Act”) and Clause 866 of Schedule 2 to the Migration Regulations. One basic criterion is that the respondent is satisfied that an applicant for such a visa is a person to whom Australia has protection obligations under the terms of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol. The relevant part of Article 1 of the Convention defines a “refugee” as 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 ...”.

FACTUAL BACKGROUND

The applicant claimed fear of persecution in Sri Lanka on the basis of his Tamil race and imputed political opinion as a supporter of the Liberation Tigers Tamil Elam (the “LTTE”).  The following summary of the applicant’s case before the RRT is taken largely from the Tribunal’s reasons.  The applicant was born in the northern village of Chilaw on 31 August 1953.  He is a Tamil of the Hindu religion.  The applicant was educated at Royal College Colombo.  In 1972 he was employed by a terrazzo flooring contractor.  The applicant was married in 1976 to a Singhalese Buddhist.  Their only child was born in 1977.  In 1979 the applicant established his own business in terrazzo flooring.  In 1983 there were ethnic riots in Colombo.  As a result of those riots the applicant and his wife separated.  The applicant’s wife and daughter went to live with her parents at Mt Lavinia, not far from Colombo.  The applicant fled to Batticaloa, a township on the east coast of Sri Lanka.  The applicant’s sister and her brother lived in Batticaloa where the applicant’s brother-in-law conducted a dental clinic.  Between 1983 and 1987 the applicant was employed by his brother-in-law as a dental technician.  In 1987 the applicant’s sister and brother-in-law emigrated to Australia.  The applicant’s sister had a 20 acre cashew nut plantation near Batticaloa. She entrusted the management of that plantation to the applicant between 1987 and 1989.  The applicant claimed that during that period the LTTE would occasionally explode land mines on the plantation and as a result he experienced problems both from the Indian Peace-Keeping Force and the Sri Lankan army.  In November 1989 the applicant left that plantation and moved to Colombo where he lived with his grandmother.  His grandmother, after being widowed, had remarried a Singhalese person.  The applicant claimed that in July 1991, in Colombo, he was initially detained by police for two days as a suspected Tamil suicide bomber.  He told the Tribunal that after two days initial detention he was then detained in the Boosa army camp from July 1991 to February 1993.  The applicant’s case was that after intercession from family members, he was released on condition that he report to the CID once a month.  In November 1993, while staying with a friend in Kandy, the applicant said that he missed a reporting appointment with the CID in Colombo.  When he returned to Colombo he was told by his grandmother that the police were searching for him.  The applicant told the Tribunal that thereafter he lived on the streets of Colombo.  In October 1994 the applicant resumed living with his grandmother in Colombo.  In March 1995 the applicant’s brother-in-law (in Australia) sent to him the form necessary for the applicant to apply for a visa under Clause 215 of the Migration (1994 Regulations).  That was a “Sri Lankan (Special Assistance) Visa”.  In the same month the applicant obtained his passport.  In April 1995 hostilities between the LTTE on the one hand and the Sri Lankan government and the army on the other hand recommenced.  At that time the applicant was on a visit (which started on 10 April 1995) to his friend in Kandy.  On 29 May 1995 the applicant returned to Colombo for an interview with the Australian High Commission in respect of his application for the Sri Lankan Special Assistance Visa.  On 25 July 1995 (so the applicant told the Tribunal) while staying with his grandmother, he was arrested.  At the police station he met a friend of his father who ran the canteen.  After payment of a bribe, the applicant was released.  On 5 September 1995, the applicant says that he paid money to an agent in Colombo and obtained a visa to travel to Australia. 

THE TRIBUNAL’S REASONS

The Tribunal accepted that the applicant had a subjective fear of persecution.  It then turned to the question whether that subjective fear was well-founded objectively.  The Tribunal referred to the relevant leading authorities and, correctly, noted that a “real chance” of persecution is one that is “substantial” or is not “remote or insubstantial”, and that the matter had to be considered in relation to the reasonably foreseeable future.  The Tribunal found against the applicant on the latter question i.e. whether the applicant had an objectively well-founded fear of persecution.  First, it referred to the fact that the applicant did not make a claim for a protection visa until his visitor visa was about to lapse.  The Tribunal said that it had regard to the fact that, on the basis of the applicant’s claim, he had undertaken terrible treatment in Sri Lanka and had come to Australia specifically for the purpose of seeking protection.  However, the majority of his family was in Australia and yet he did not make any application until the visitor visa was about to lapse.  The Tribunal expressed the opinion that this was “determinative” of the applicant’s genuineness in his application for protection.  There was some debate about the meaning of the word “determinative” during the course of the proceedings today.  I shall return to that matter in a moment.

I interpolate here that there may appear to be some inconsistency in a Tribunal accepting an applicant’s subjective fear of persecution and at the same time rejecting the genuineness of his application.  I think that, consistent with the approach recommended in cases such as Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1986) 185 CLR 259 at 291-292 it is important not to take an approach which is too narrow in reviewing the Tribunal’s decision. I think that the approach which the authorities dictate is for this Court to regard the Tribunal, when it stated that it accepted that the applicant had a subjective fear, as saying that that was an assumption upon which it proceeded. In any event, the applicant did not advance an argument based on any such inconsistency. I will come in a moment to the two complaints which the applicant made about how the Tribunal dealt with the matter of delay. For the time being I shall return to the Tribunal’s reasons.

The Tribunal then stated that it had “... a positive state of disbelief in regard to many of the applicant’s claims ...”.  The Tribunal did not accept the applicant’s claim that when he returned to Colombo in 1991 he was wanted by the authorities.  The Tribunal did not believe the applicant’s evidence that he was detained for one year and eight months at the Boosa army camp as a suspected LTTE terrorist.  It noted that the applicant speaks fluent Singhalese, that he did not fit the profile of an LTTE terrorist and that his family had inter-married with the Singhalese community.  The Tribunal then had regard to the general information about the political history of Sri Lanka from 1978 through to 1995.  That history included some particular evidence concerning the Boosa camp.  The Tribunal then had regard to evidence from the (Australian) Department of Foreign Affairs and Trade on procedures for Sri Lankans to obtain passports and for passport controls at the international airport.  The Tribunal concluded that had the applicant been a person who the authorities “were after” he would not have been able to have been released with a bribe after one year and eight months at the Boosa camp.  Furthermore, the Tribunal said that it did not believe that if the applicant had been a person “who was identified by the authorities as having even a remote connection with the LTTE” he would have been able to pass through the immigration check point.  There were other matters (see for example pp 19 and 21 of its reasons) which formed the basis for the Tribunal’s disbelief of the applicant. 

The Tribunal then referred to the question of relocation.  It found that the applicant was able to live in Kandy “for some time without difficulty”.  It held that even if the applicant had a well-founded fear of being persecuted then it would be reasonable for him to locate to Kandy.  The Tribunal referred to the applicant’s age, his previous work experience (acknowledging that the applicant had not worked since he left Batticaloa in 1989), his fluent knowledge of Singhalese, English and Tamil, and his contacts.  The Tribunal concluded that there was not a real chance in the foreseeable future that the applicant would face persecution on account of being a Tamil, either for that reason alone or in combination with any other Convention reason.  Accordingly the Tribunal affirmed the decision not to grant a protection visa.

THE COURT’S FUNCTION

It is important in cases of this type to keep in mind the Court’s function. The Court’s role is to examine the matters specified in the grounds of review. It is not the function of the Court to review the merits or decide the facts of the case. The facts are for the maker of the administrative decision, in this case the Refugee Review Tribunal. This Court’s function is to ascertain whether there was anything having the nature of an error of law in the Tribunal’s decision including any error in the approach which it took to deciding the questions before it. In particular (on the present state of the authorities) was there a failure to comply with the requirements of s 420 of the Act or does any matter otherwise arise under s 476 of the Act?

THE APPLICATION FOR JUDICIAL REVIEW

The applicant grouped his grounds for review under four headings.  To some extent those grounds overlapped. I think it is fair to say that the applicant’s case as presented in court today differed substantially from that which appears from his application and the outline of submissions.  The case as so presented was reduced to two matters.  The first was described by Mr T V Hurley, counsel for the applicant, as “the credibility issue”.  The second matter was the manner in which the Tribunal had conducted itself.  Three complaints were made under that heading, to which I will come in a moment.

First, I shall deal with the credibility issue in respect of which two complaints were made.  The first was that the Tribunal had misconstrued Heerey J’s decision in Selvadurai v the Minister for Immigration and Ethnic Affairs (1994) 34 ALD 346 at 349. The applicant complained that the Tribunal drew adverse inferences from the matter of delay, i.e. the delay between the applicant's arrival in Australia on 20 September 1995 and his claim for a protection visa made on the eve of the expiry of his visitor’s visa. In his written submission the applicant contended that the passage of three months is not unreasonable. The question is not whether the passage of three months is not unreasonable. That is something for the Tribunal to assess. The question is whether the Tribunal was entitled to have regard to the delay and to draw an adverse inference from that delay.

The applicant sought to distinguish the decision in Selvadurai on the basis that the delay in that case was 20 months.  Obviously each case turns on its own facts.  However, as a matter of principle I respectfully agree with Heerey J that the period of time which elapses between an applicant’s arrival in Australia and the time when he or she claims refugee status is a legitimate matter to take into account when assessing the genuineness or at least the depth of an applicant's fear of persecution.  I would go further and find that such a delay is a legitimate matter which the Tribunal is entitled to take into account when deciding whether to believe an applicant.

In my view, it was open to the Tribunal to draw an adverse inference in this matter from the fact that the applicant was claiming on the one hand to have suffered such terrible treatment at the hands of the authorities in Sri Lanka, but, on the other hand, leaving it to virtually the last minute before applying for refugee status.  However, that was not precisely the way upon which the applicant put his case in court this morning.  The applicant focused on a passage at page 10 of the Tribunal’s reasons which reads:

“The Tribunal notes that the Applicant came to Australia on a valid 3 month tourist visa and did not make a claim for protection until his visa was about to lapse.  While this may not seem to be a long wait prior to applying for protection, the Tribunal had regard to the fact that the Applicant, if the Tribunal were to accept the Applicant’s claims, had undergone terrible treatment in Sri Lanka and came to Australia specifically for the purpose of seeking protection.  The majority of his family is in Australia and yet the Applicant did not make any application for protection until his tourist visa was about to lapse.  The Federal Court in Selvadurai v MIEA (1994) 34 ALD 347 at page 349 found that delay in making application for refugee status was a legitimate fact to take into account in assessing the genuineness, or at least the depth of fear of persecution. The Tribunal is of the opinion that this is determinative of the Applicant’s genuineness in his application for protection.”

As I understand the submission made on behalf of the applicant by Mr Hurley, it was that in the sentence at the end of the above passage the Tribunal can be seen to have been applying Selvadurai as determinative of the present application.  I do not read the Tribunal’s reasons in that passage in that way.  As I read the reasons, the Tribunal was referring to the fact in the immediately preceding sentence that, “Delay in making application for refugee status was a legitimate fact to take into account in assessing the genuineness or at least the depth of fear of persecution.”

When the Tribunal says, “The Tribunal is of the opinion that this is determinative of the applicant’s genuineness in his application for protection” in my view it was saying that, “In this matter delay is determinative of the applicant’s genuineness in his application for protection”, and I refer specifically to the cases which in effect state that one is not to take too fine a toothcomb to a Tribunal’s reasoning.  The respondent, in meeting this argument, referred me to the definition of “determinative” in the Oxford English Dictionary.  Mr W Mosley, counsel for the respondent, suggested that the Tribunal was using the word “determinative” in the sense of impelling towards a decision or, (as the version which I have of the Shorter Oxford English Dictionary in front of me suggests), “Serving or tending to determine, decide or fix.”

I am inclined to think that when the Tribunal said that “this is determinative” it was referring to the matter of delay and that it meant it determined the applicant’s genuineness.  So, while I reject the respondent’s submission that the Tribunal used the word “determinative” in the above passage of its reasons as meaning “impel in a certain direction”, I think that there is considerable merit in the argument that a reasonable examination of the Tribunal’s reasons shows that despite its use of the word “determinative”, in reality the Tribunal’s credibility finding against the applicant was not based solely on its assessment of the significance of delay.  That observation made by the Tribunal in the above passage was in the context of other adverse findings with respect to the applicant’s credit. I incorporate here by reference the findings referred to from the middle of page 17 to the seventh dot point and including the seventh dot point on page 18 of the respondent’s written submissions.  The key finding made by the Tribunal was that the applicant’s fear was not well-founded on an objective basis.  In conclusion on the first limb of the applicant’s submissions on what he called “the credibility issue”, I do not think that the Tribunal misconstrued the decision in Selvadurai.

The applicant’s second complaint under the heading of the issue of credibility was, in essence, that the Tribunal had failed to raise with the applicant any concerns which it may have had about the delay in his application for a protection visa. The applicant was legally represented by a solicitor who was also a migration agent. The transcript of the proceedings before the Tribunal shows that that solicitor was allowed to take quite an active part in the proceedings before the Tribunal. There is no evidence before this Court that the Tribunal had at the hearing formed even tentative views about the significance of the applicant's delay in applying for refugee status and the bearing which that might have had on, the applicant’s, credit. His solicitor must have been aware that this was a matter from which there was at least the possibility of an adverse finding. To wait until two days before a visitor’s permit expires before applying for refugee status, after making the sorts of claims of ill-treatment which the applicant put forward, calls in my opinion for some explanation. None was forthcoming. In all the circumstances I do not consider that section 420 of the act required a procedure whereby the Tribunal put the matter of delay to the applicant before making the findings which it proceeded to make on that matter.

The applicant relied on a recent decision of Gray J in a case of Kathiresan v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, unreported, 4 March 1998, No 59 of 1998).  In my opinion, that was a very different type of case.  There the Tribunal decided a question of identity; i.e. that the applicant was simply not who he said he was, without putting to the applicant that identity was even in issue.  In the present case the delay was self-evident on the undisputed facts before the Tribunal.

I now turn to the second major set of complaints raised by the applicant on the procedures which the Tribunal adopted. First, the applicant complained that the Tribunal failed to inquire of him what his experiences were while he was, on his case, detained between July 1991 and February 1993.  In particular, the applicant complained about the Tribunal referring to and then rejecting a history given by Ms Maritza Thompson in a consultation on 6 March 1997.  The applicant contended that the Tribunal had drawn adverse inferences against him from his failure to recount in detail the events which occurred between July 1991 and February 1993.  The applicant’s submission was that as the inquiry was conducted by the RRT and was of an inquisitorial nature, it was unreasonable for the Tribunal to criticise the applicant for not “eliciting this information”.  It is necessary to give some brief background to this particular matter.  The applicant had said that he was unable to describe what occurred to him when he was in gaol during that period because he was too depressed.  The applicant's solicitor had forwarded to the Tribunal, on 6 January 1997, an undated letter from a Ms Sharon Henderson.  Ms Henderson was a registered psychiatric nurse employed at the North Richmond Community Health Centre.

At the hearing, the Tribunal made it clear to the applicant and his solicitor that it did not accept the report as coming from an expert.  The applicant’s solicitor then sought an adjournment for one month to obtain a further report.  The Tribunal granted a further 28 days' adjournment and on 12 March 1997 the applicant’s solicitor forwarded the report from Ms Maritza Thompson.  Ms Thompson had seen the applicant on one occasion for two and a half hours.  When one reads the Tribunal’s reasons it appears reasonably clear that the Tribunal was not prepared to accept anything that was recited in either the certificate from Ms Henderson or the report from Ms Thompson which recorded the applicant's version of his experiences in detention between July 1991 and February 1993.  In my view, it is debatable whether the Tribunal drew adverse inferences against the applicant from his failure to recount in detail those events.  Even if it did so, in my opinion the Tribunal was entitled to take that course.  The key aspect of that matter is that the Tribunal simply did not believe the applicant in respect of major aspects of his claims.  The applicant, as I have mentioned, was represented by a solicitor.  The authorities show that it is not for the Tribunal to make out the applicant's case.

The applicant, in summary, complained that the Tribunal did not ask him the question, “What did happen in Boosa?”  This was coupled with a complaint that the applicant was not given a reasonable opportunity to explain what happened in Boosa.  From the transcript of the proceedings before the Tribunal it can be seen that what took place at Boosa was the subject of substantial evidence.  There has been a divergence in respect of some of the relevant passages in the transcript, between the version tendered by the applicant and the version tendered by the respondent.  I will refer to the version which the applicant passed to me for pagination references.

I refer first to page 50 of the transcript and also page 53 to 54 for the statement, which I have just made, that what took place at Boosa was the subject of substantial evidence before the Tribunal.  Also, as I have just mentioned, the applicant’s very detailed version of what he said took place at Boosa was before the Tribunal in Ms Henderson’s report at page 63 of the court book and in particular the third main paragraph on that page.  The Tribunal simply chose not to accept that account.

The next complaint was a complaint of failure to inquire.  Part of the applicant’s submissions, as I understood them, was that the Tribunal should have inquired about what happened at Boosa and in particular inquired of the applicant about that matter.  There are of course cases where a decision-maker’s failure to consider whether it was necessary to make inquiries or cause inquiries to be made constitutes reviewable error.  The question is whether in failing to do so, assuming for the moment that without so deciding, that the extent of the inquiry made of the applicant was insufficient - that it was whether the Tribunal failed to comply with its obligation to act according to substantial justice or failed to have regard to the merits of the applicant’s case - see Minister for Immigration and Ethnic Affairs v Singh (1997) 144 ALR 284 at pp 290-291 (Full Court); Li v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 179; Abbouchi v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, unreported, Wilcox J, 4 February 1998, Judgment No 87 of 1998); Sun Zhan Qui v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Full Court, unreported, No. 1488 of 1997) and Balwir Singh v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Full Court, unreported, No. 1285 of 1997).

The applicant, as I have already said, was legally represented and his solicitor took a reasonably active part in the proceedings, including the making of submissions. The transcript shows that he and the applicant were given every opportunity to put their case. In my view, the process in which the Tribunal engaged complied with the requirements of s 420 of the Act despite the complaints made by the applicant in respect of the matters to which I have just deferred.

There was one further complaint under that second main heading.  That concerned a passage, a short passage, at page 19 of the Tribunal’s reasons:

“As stated previously, the Tribunal does not accept as credible the Applicant’s claim that he was detained by CID, yet he was not able to provide any details of where the CID office was and then he was detained for 20 months in an army camp...”

The specific complaint was that in fact the applicant did give some evidence about the whereabouts of the CID office.  In one way the argument might descend to a question of what are details.  In that regard, if a court were to find for the applicant on that basis, it would fly in the face of all the authorities (and in particular Wu) which declare the approach which the court on judicial review should take.  But even so, I do not think that the criticism made by the applicant is made out.

When one looks at the transcript, it is, in my opinion, a fair summary that the applicant really was not able to give much in the way of information about where the CID office was.  I refer to the passage in the transcript (at page 23) where there is a reference to, on one version, Prince Street, and the other, Queen Street.

RELOCATION

The final matter is the question of relocation.  This was dealt with by the Tribunal on the basis of it being wrong in everything else that it had found and that the applicant not only had a subjective fear of persecution, but that that fear had an objective basis.  The main complaint, as the applicant’s case was presented this morning, was that as a result of the two errors under the heading of “the credibility issue” the decision should be set aside because the substantial issues of credit were so fatal to the decision that the findings on relocation should fall with it.

In my view that is not the case.  When approaching the matter of relocation, as I have just mentioned, the Tribunal accepted all that the applicant had said and then asked whether it was reasonable, having regard to the applicant’s personal circumstances, for him to relocate.  I do not think there was any argument that the correct legal test was that outlined and declared by Beaumont J in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (Federal Court of Australia, unreported, Full Court, 11 August 1994).  The Tribunal had before it evidence that the applicant had lived in Kandy on at least two occasions and for various periods - on one occasion for a week to 10 days.

I refer to page 35 of the transcript of evidence before the Tribunal.  There was other evidence that, between March 1995 and July 1995, with one period of interruption when the applicant went to Colombo for the purposes of his application for the special permit, the applicant was able to live in peace in Kandy.  The applicant also submitted that the Tribunal had erred in concluding that he had reasonable prospects of relocating in Kandy when at all times he had claimed that he had been to Kandy on infrequent occasions to hide. In the written submissions, the applicant put the matter slightly differently.  He said that the Tribunal based its finding on the matter of relocation on a claim that the applicant had been able to live in Kandy for some time without difficulty.

It was said that this finding contradicted the Tribunal’s earlier finding that the applicant went to Kandy on three occasions by bus; in other words, that he did not live there.  That, as the matter was presented in court this morning, was not pressed.  The applicant submitted that the relocation findings should fall with the earlier findings.  In my view, the evidence before the Tribunal shows that on at least two occasions the applicant went to Kandy and spent time there.  It was open on the evidence before the Tribunal for it to find that if, contrary to what it had held to be the case, the applicant had problems in living in Colombo, then it was reasonable for him to relocate to Kandy.  The Tribunal gave its reasons for reaching that conclusion.

For those reasons I find that the Tribunal has not contravened section 420 of the Migration Act, nor has there been other reviewable error (whether incorporated via s 420 or directly) under s 476 of the Act. The application will be dismissed.

The formal orders will be:

1. Application dismissed.

2. Applicant to pay respondent’s costs.

I certify that this and the preceding twelve (12) pages are a true copy of the Reasons for Judgment of Justice Carr

Associate:

Dated:            1 April 1998

Counsel for the Applicant:	Mr T V Hurley
Solicitors for the Applicant:	Messrs Barlow & Co
Counsel for the Respondent:	Mr W Mosley
Solicitors for the Respondent:	Australian Government Solicitor
Date of Hearing:	10 March 1998
Date of Judgment:	10 March 1998