Witharana, Don Sudantha Niroshan v Minister for Immigration & Multicultural Affairs [1998] FCA 1696

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG1041 of 1998

BETWEEN: DON SUDANTHA NIROSHAN WITHARANA

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: WILCOX J

DATE: 21 DECEMBER 1998

PLACE: SYDNEY

EX TEMPORE REASONS FOR JUDGMENT WILCOX J: This is an application for review of a decision of the Refugee Review Tribunal rejecting a claim by Don Sudantha Niroshan Witharana for a protection visa. Mr Witharana claimed he was a refugee within the meaning of the Convention on Refugees. The Tribunal member accepted the truthfulness of the major matters raised by Mr Witharana but held that the incidents to which he referred did not amount to political persecution. Consequently, Mr Witharana did not fall within the definition of "refugee" in the Convention. There are four matters that should be referred to in relation to the facts. The first is that the brother of the applicant was murdered by unknown assailants on 2 January 1987. Mr Witharana's family are Singhalese but apparently some members have married Tamils and the brother was being accompanied by a Tamil friend when he was killed. The Tamil friend was also killed. Apparently the killers were never caught and the members of the family have been dissatisfied about the lack of a proper police investigation. There is a suggestion that the police might have had some complicity in the murders and there has been a cover-up. In 1991 the applicant was detained for questioning by the Negombo Police in respect of alleged Liberation Tigers of Tamil Eelam ("LTTE") connections in Wellawatte. Wellawatte is apparently a suburb of Colombo. The Tribunal member accepted claims by the applicant that he was slapped in the face, had a gun put to his head and was beaten around the head by police officers whilst being questioned. He denied any involvement with the LTTE and was released the same day. In 1995 police again detained the applicant. This apparently occurred because a Tamil cousin mentioned the applicant's name during the course of interrogation. The applicant was brought to Wellawatte Police Station and interrogated. He was accused of involvement in LTTE bombing incidents in Colombo. He denied involvement, was beaten and kept in his cell the whole day, and only released upon promising to pay a bribe of 1,000 Rupees the next day. In August 1996 the applicant was abducted by plainclothes people who claimed to be police officers. He was detained and released on payment of a bribe of 60,000 Rupees. Following this incident the applicant left the country. The applicant at all times lived in the Colombo district. In 1987 he took a job at the Sampath Bank. According to the Tribunal this bank is owned by a Singhalese Buddhist group which initially employed only Singhalese people, although later it recruited staff from other ethnic groups and commenced to take deposits from Tamil customers. Mr Witharana continued to work for the bank until he left Sri Lanka. As the Tribunal member pointed out, whatever occasional suspicion police may have had about Mr Witharana's involvement with the LTTE, it did not affect his continued employment by a bank which was not associated with the Tamil community, at least in the sense of recruiting staff from that community. The Tribunal accepted the substance of the claims made by the applicant, and endeavoured to identify the grounds on which these events might be said to be Convention related. After discussion with the applicant's representative, the Tribunal member considered two grounds: (i) on the basis of a social group consisting of Singhalese with Tamil connections; and (ii) on the basis of the applicant's perceived political opinion as an LTTE supporter. In relation to the first basis, the Tribunal member gave reasons for holding that a category, "Singhalese with Tamil connections", could not be said to be a social group within the meaning of the convention. Dr Churches, who appears for the applicant today, accepts the member did not fall into error of law in rejecting this basis of the claim. In relation to the second basis, perceived political opinion as an LTTE supporter, the Tribunal member noted that the applicant denied strongly ever holding views favourable to the LTTE. The member said he had no hesitation in accepting that denial. However, the Tribunal member went on to note that the fact that a person does not hold a particular political opinion, does not mean he cannot be regarded as a victim of persecution for reasons of political opinion. A political opinion may be attributed to a person and lead to persecution for reasons of political opinion. The Tribunal member then analysed the evidence in order to determine whether there was any evidence that political opinions where attributed to Mr Witharana. He pointed out that the murder of the brother furnished no guide; it was not clear why the brother was murdered or by whom. The Tribunal member said corrupt police might have been involved. However, nothing occurred, so far as the applicant was concerned, until 1991. During the intervening time he was working for the bank and was promoted. In relation to 1991, the Tribunal noted the applicant's claim that he was interrogated in relation to alleged LTTE connections. The member noted that he denied any connection and was released; similarly in 1995. The Tribunal member commented that, assuming the claims to be true: "It is difficult to deduce from those two isolated incidents that the police seriously perceived him as an LTTE supporter or sincerely believed that he was involved in the bombing incidents, although they may have resented the fact that he was friendly with Tamil's. It is more likely that the police were motivated by other considerations; in the first incident to hide the involvement of their officers in the murder of his brother, in the second incident most notably, to extract a bribe." In relation to the August 1996 incident the Tribunal member noted that, unlike the earlier detentions, this clearly lacked any semblance of legality. He said: "If police were involved and he had merely their say so to that effect, they were acting well outside their duties and indeed for private gain. If one of them was an army deserter, he was strange company for policemen to keep. Although they allegedly accused him of being an LTTE supporter, they appeared to have a greater interest in obtaining information about bank accounts. When this failed they extorted 60,000 Rupees from him. The fact that they knew about his promotion and that he held the special keys indicates clearly what their motives were. No doubt the accusations could have been a handy tool in the extortion process, but once again I cannot accept this as evidence that he was perceived by those in power as holding the political opinions of an LTTE supporter." It seems to me these are entirely findings of fact. I am unable to perceive any question of law, still less any error of law. Dr Churches read an affidavit sworn by his client to which was annexed a copy of a decision of the Refugee Review Tribunal dated 23 January 1998, in respect of the present applicant's mother and sister. This decision was given by a different Tribunal member, before the decision in the present case. A copy of the decision was furnished to the Tribunal member hearing Mr Witharana's case. In his reasons for decision, the Tribunal member did not refer to the earlier decision. Dr Churches says this was an error of law; it was an error of law for the member who heard the present case to fail to give consideration to the findings made by his colleague in the earlier case. The colleague found that the mother and sister fell within the definition of "refugee". I do not propose to summarise the evidence accepted in the earlier case. It is sufficient to say that the accepted claims of persecution were both more numerous and more serious than those of the present applicant. Moreover they seem to be closely related to contact between the mother and sister and the Tamil community. Simply reading the two reasons for decision, I get the impression that the mother and sister were more involved with their Tamil relatives than was the present applicant. I do not think it was an error of law for the member hearing the present case to fail to refer to the other decision. Section 430 of the Migration Act 1958 requires that the Tribunal set out its findings on material questions of fact and identify of the material upon which those findings are based. The Act does not require the Tribunal to refer to all the material to which it is referred before, during or immediately after a hearing. I think the member hearing the present case was entitled to take the view that the decision given by his colleague in the earlier case was irrelevant to the task he had to perform. The member had to make up his own mind on the basis of the material before him. It would have been quite improper for him to be influenced by the finding of a colleague in relation to a factual matter that depended upon different evidence. This is just as true where the earlier finding was in favour of granting a visa as it would be if the earlier claim for refugee status had been rejected. If the member hearing the present case thought the earlier decision was irrelevant, he was entitled to disregard it in his reasons for decision. I do not think that the failure to make any reference to the earlier decision constitutes an error of law or a failure to provide substantial justice to the present applicant. The second matter argued by Dr Churches is that the member erred in law in finding against his client's claim that he lacked the protection of the Sri Lankan state. The Tribunal Member dealt with this question relatively briefly. He said; "Even if one could regard these events as persecution for reasons of a perceived political opinion, the question of whether the applicant lacks the protection of the Sri Lankan state must be considered." The member then referred to some authorities and ultimately adopted the view expressed by Nicholson J in Minister of Immigration & Multicultural Affairs v A, B and C, (unreported 9 April 1998) where his Honour stated: "In the absence of a presumption the failure of an applicant to make out that condition would result in the applicant failing to make out a case on that basis." In other words, if an applicant does not provide material from which the Tribunal would be justified in finding that the State of the applicant's nationality was unable or unwilling to provide protection, then the Tribunal member could not find the Convention definition was satisfied; a vital element would be missing. I respectfully adopt the approach expressed by Nicholson J. It seems to me to be no more than commonsense. The Tribunal Member then went on: "However, the applicant made no attempt to contact the authorities in relation to the above incidents, particularly the last one which is a blatantly illegal act which compromised the security of the bank. The advice by the monk is hardly evidence that State authorities were unwilling or unable to act for his protection; he may well have had other reasons to dissuade the applicant from taking action. I am, therefore, unable, to conclude that he is unable or owing to well-founded fear of persecution on a Convention ground, unwilling to avail himself of the protection of the Sri Lankan State." I should explain the applicant said he did not contact the authorities because he was advised against this by a Buddhist monk. Dr Church put to me it would obviously have been futile, and perhaps dangerous, for the applicant to complain to the police about the misconduct of other police. He referred to the alleged cover up of the brother's murder, the apparently unnecessary violence during the two interrogations, and particularly the abduction in August 1996. I think, once again, this was a question for the Tribunal to consider as a matter of fact. However, as the point has been raised, I comment it is not self-evident that there is no available avenue to a person in Sri Lanka in relation to police misconduct. Most legal systems take cognisance of the fact that police misconduct does occur from time to time, and it will generally be futile and often inadvisable to complain to police about the actions of colleagues. For that reason, usually other government functionaries are given power to investigate complaints against police. I am not aware whether any provision has been made in Sri Lanka; the important point is that nothing seems to have been put before the Tribunal to indicate the absence of an avenue of complaint. My reaction to reading the decision before the hearing was to think the critical aspects of the decision were entirely questions of fact. Nothing that has been put in argument persuades me otherwise. Nor has anything been put in argument that suggests a failure to give the applicant substantial justice. Consequently, the application for review must fail. The application is dismissed with 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 Wilcox