Thillainadarajah, Thangarajah v The Minister for Immigration and Multicultural Affairs

[1997] FCA 1454

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	VG 467  of   1997
BETWEEN:	THANGARAJAH THILLAINADARAJAH APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		HEEREY J
DATE OF ORDER:		3 DECEMBER 1997
PLACE:		MELBOURNE

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant pay the respondent’s costs including reserved costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	VG 467 of 1997

BETWEEN:	THANGARAJAH THILLAINADARAJAH APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	HEEREY J
DATE:	3 DECEMBER 1997
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

The applicant is a citizen of Sri Lanka, aged 27.  He arrived in Australia on 18 April 1997 unlawfully.  On detention by immigration officers at the airport, he was interviewed.  On 6 May he made an application for a protection visa.  His application was refused on 18 June by a delegate of the Minister, and that decision was confirmed on 25 July by the Refugee Review Tribunal.  He now brings this application for review.  It will be convenient to quote a fairly lengthy passage from the Tribunal's reasons.  This passage will give both a picture of the factual background of the applicant's case, as well as the approach the Tribunal took. 

“In considering the Applicant’s evidence about his experiences in Sri Lanka, the Tribunal finds that he is a Tamil from Mullaitivu; that he was detained by the IPKF [Indian Peace Keeping Force] and released in 1989; that he was not mistreated by the SLSF [Sri Lankan Security Forces] or other agents of the government after that period; that he did not work for the LTTE [Liberation Tigers of Tamil Eelam] or any of its organisations; that neither he nor his family members are linked with the LTTE; that he went to Colombo in January 1997, stayed there for three months and obtained a passport and then left the country, having complied with all security requirements for travelling across the country, staying in Colombo and departing.  It does not accept that he was suspected of being an LTTE worker or supporter or that he was detained and beaten in Colombo.  Nor does it accept that the LTTE has any interest in him on the basis that he has deserted its cause.

In respect of his claims about his family’s situation since he left, the Tribunal does not accept that his father-in-law has been detained or that the security forces have been searching for him at his home.  It finds that the information to that effect from his family has been fabricated.  The Tribunal concludes that the Applicant was of no interest to the Sri Lankan authorities on account of his real or imputed political opinions and his race when he left the country and that there has not been a change since he departed to support a conclusion that there has been fresh interest in him.  Any fears he harboured or still harbours about being persecuted on account of his political opinions are not well-founded.

The question still remains as to whether or not the Applicant faces persecution because he is Tamil.  It is submitted that he is particularly at risk because he is a young Tamil male from the North, has no connections in Colombo and cannot speak Sinhala.  The Tribunal does not accept that he has no connections in Colombo.  His in-laws live there and his father-in-law is a successful businessman who has had the contacts to help the Applicant travel from his home town to Colombo, remain there for several months and obtain documentation to leave the country.  The in-laws hosted the wedding of the Applicant and his spouse stayed with them in Colombo from 1990 when she was not studying at University in Jaffna.  The Tribunal does not accept that his father-in-law has been detained, nor does it accept that relations with him are so strained that he would be unwilling to assist the applicant as he did before his departure.

The Applicant was able to travel from Mullaitivu to Colombo previously without being persecuted for any Convention reason.  He used his own identity card and he did not encounter any problems, was cleared of any links with the LTTE and lived in Colombo for the three months before he departed without difficulty.  Previously, he lived in Mullaitivu all of his life without being persecuted by Sri Lankan authorities, notwithstanding that it was under government control until recently.  The only time he has encountered difficulty with security forces was in 1988 when the IPKF took over from the SLSF in its frustrated efforts to suppress the LTTE.  Since he was released, the IPKF has left the country and the Applicant has had seven years without any further repercussions.  While he claims that it is unsafe to return to Mullaitivu, he left his wife and young family there with his mother after the LTTE attack on the Mullaitivu army camp and his brother still lives there as well.  There is no evidence that those members of his family, or others, have been mistreated, although it is likely that they experience some privations as the SLSF act to regain territory that has been overtaken by the LTTE.  The Applicant has never had an LTTE profile and, in all of the circumstances, the Tribunal finds that he does not have a well-founded fear of being persecuted on account of his political opinions or his race if he returns to Sri Lanka. 

While there continues to be fighting in his area, the resulting deprivations are the consequence of a situation that pertains to the general population, regardless of the reasons in the Convention and, while the Tribunal is sympathetic to the Applicant’s desire not to return to such a situation, it does not alter the conclusion that his fear of persecution for a Convention reason are not well-founded.

There is some evidence that it is difficult to return to the North and East provinces from Colombo, just as there was when the Applicant went to Colombo.  He has been able to negotiate such travel before by producing his own NIC [National Identity Card] and satisfying the authorities that he is not connected with the LTTE.  The chances that he may now encounter persecutory behaviour if he returns are so remote as to found a conclusion that he does not have a well-founded fear in that respect.

If he does not want to return to his home town, or is unable to, it is reasonable that he relocate to Colombo, where he has his father-in-law to assist him and has a recent history of residing there without encountering any serious harm.  The Tribunal acknowledges that some young male Tamils from the north may be at risk of mistreatment in Colombo, but the Applicant was cleared to go there before, he was not harassed when he did so and he has the alternative of being accommodated by his parents-in-law.  While that may not be his first choice, his in-laws have previously assisted him and it is not unreasonable that he lives there until such time as he finds more agreeable accommodation.

The Tribunal found the Applicant to be an unreliable witness who was willing to fabricate, amend or add to evidence in support of his claims.  On the basis of the acceptable evidence, the Tribunal is not satisfied that he faces a real chance of persecution for a Convention reason should he return to Sri Lanka.  If he is unable to return to his home area, it is reasonable that he relocate to Colombo.  Therefore he is not a person to whom Australia has protection obligations under the Convention and Protocol and is not entitled to a protection visa.”

There was no dispute as to the legislation that is applicable or to the relevant authorities and in particular Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Counsel for the applicant made two attacks on the decision of the Tribunal. First, he said that the whole approach taken by the Tribunal disclosed an error of law, the Tribunal had "gone straight to credibility", and had not considered the two stage test laid down in Chan, that is to say whether the applicant held a fear of persecution on a Convention ground and whether that fear was objectively well-founded.

Secondly, counsel said that there was a breach of the requirement to conduct the proceedings in accordance with a "substantial justice" required by s 420(2)(b) of the Migration Act 1958 (Cth). Linked with this argument was the complaint that there was a breach of s 476(1), that there was no evidence of other material to justify the making of the decision.

Turning to the first ground of attack it seems to me that, particularly applying the approach to review of decisions stressed in Wu, which warns against unduly pedantic fault finding, it is clear that the Tribunal had the Chan test well in mind, as it said it did.

It is true that the Tribunal made very substantial findings against the credibility of the applicant, but in the nature of the case the Tribunal could hardly avoid grappling with this issue.  It may be implicit in the Tribunal's reasons that it was not prepared to find that the applicant had, subjectively speaking, a genuine fear of persecution on a Convention ground.  But in any case it made clear in the last paragraph of the passage that I have quoted that it considered that any fear held by the applicant was not well founded.  The Tribunal reached this conclusion as a result of a comprehensive and detailed review of the evidence before it.  In particular it relied on what it found to be the lack of personal credibility of the applicant.  It is hardly necessary to cite authority for the proposition that a Court, either on appeal or on review considering credibility final findings should give very great weight to the fact finder who saw and heard the person in question.  That well established principle was applied in a refugee context by Tamberlin J in Navaratne v Minister for Immigration and Multicultural Affairs, unreported, 1 August 1997 at 28. 

Secondly, the question of "substantial justice" is confined to procedural matters:   Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621 at 624.

Fundamentally this application for review was an attack on the merits of the decision.  In my view it fell precisely within the category of the impermissible attack on administrative decisions referred to by Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356; see also Wu in the judgment of Kirby J at 291 where his Honour said:

“3.  Specifically, the reviewing judge must be careful to avoid turning an examination of the reasons of the decision-maker into a reconsideration of the merits...

4.   ...
5.  The weight to be given to the material before the decision-maker is ... reserved to the decision-maker.  The decision-maker will usually have advantages over the reviewing judge in evaluating evidence and submissions.  Those advantages will include the conventional ones of seeing any parties and witnesses who are heard and having time to reflect upon all of the material.  But there are additional reasons for restraint and resistance to any temptation to turn a case of judicial review into effectively, a reconsideration of the merits.  Often, the decision-maker will have more experience in the consistent application of applicable administrative rules to achieve fairness to a wider range of people that typically come before the courts.” 

It will be sufficient to advert to some examples of what in my respectful opinion was a misconceived attack.  The Tribunal made some adverse findings against the applicant because when first interviewed at the airport he failed to mention a number of obviously important matters which he later relied on.  One instance of this was a claim that a brother had been forced to flee Sri Lanka.  Now, it is true of course that there may be explanations why a person does not on the first occasion when he has the opportunity to give an account of a matter say everything within his knowledge relevant to that matter.  But on the other hand it is a very common technique in legal and administrative fact finding, and indeed in everyday life, to view with some caution an account of events in which important matters are omitted at the first occasion at which the account is given, but later added.  There is no universal rule, but it is a technique which a fact finder may or may not find useful in the circumstances of a particular case. 

In the present case the Tribunal may well have thought that since the whole purpose of the applicant's journey to Australia was to seek refugee status he would tell to the first Australian official he saw everything he thought might assist his case.  But it is not for me to review the probabilities one way or the other; these were questions of fact which were within the sole province of the Tribunal. 

Likewise, a frequently repeated complaint of the counsel for the applicant was that the Tribunal accepted some matters the applicant said and rejected others.  Commonsense however teaches us that not everything even the most untruthful person says is untrue, if only for the fact that sometimes the truth will assist such a person. For the Tribunal to accept part of the applicant's story and reject other parts was no more than an everyday exercise in fact finding. 

To the extent that there was complaint about the lack of evidence I would refer in particular to s 476(4) and the severe limitations that it places on the "no evidence" rule.  In my opinion the attack on this ground failed because it did not meet the requirements laid down in Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212 at 221.

The application will be dismissed.

There will be an order that the applicant pay the respondent's costs, including reserved costs.

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey

Associate:

Dated:             

Counsel for the Applicant:	P N Rose
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	W Mosley
Solicitor for the Respondent:	Wisewoulds
Date of Hearing:	3 December 1997
Date of Judgment:	3 December 1997