FEDERAL COURT OF AUSTRALIA Rajadurai v Minister for Immigration & Multicultural Affairs [1999] FCA 125 MIGRATION – Refugee status – Whether well-founded fear of persecution – Finding that applicant did not have well-founded fear of persecution – Whether finding required as to applicant's subjective fear of persecution. Migration Act 1958 (Cth), ss 36, 65, 476. Migration Regulations 1994 (Cth), reg 866.221. Convention Relating to the Status of Refugees, Art 1A(2). Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559, cited. Emiantor v Minister for Immigration & Multicultural Affairs (1997) 48 ALD 635, cited. Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379, cited. Emiantor v Minister for Immigration & Multicultural Affairs, unreported, 20 July 1998 (Olney, Sundberg & Marshall JJ), cited. RAJADURAI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS NG 1221 of 1998 JUDGE: SACKVILLE J PLACE: SYDNEY DATE: 23 FEBRUARY 1999 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 1221 OF 1998 BETWEEN: NAGULAN RAJADURAI Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: SACKVILLE J DATE OF ORDER: 23 FEBRUARY 1999 WHERE MADE: 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 NG 1221 OF 1998 BETWEEN: NAGULAN RAJADURAI Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: SACKVILLE J DATE: 23 FEBRUARY 1999 PLACE: SYDNEY REASONS FOR JUDGMENT The Application 1 This is an application, pursuant to s 476(1) of the Migration Act 1958 (Cth), to review a decision of the Refugee Review Tribunal ("RRT") made on 14 October 1998. The RRT affirmed a decision made by a delegate of the Minister on 6 August 1998, refusing to grant the applicant a protection visa. According to the amended application, the applicant relies on s 476(1)(a) of the Migration Act (failure to observe procedures required to be observed in connection with the making of the decision) and s 476(1)(e) (an error of law involving the incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the RRT). Legislation 2 Under s 65(1) of the Migration Act, the Minister may grant a visa only if satisfied that the criteria prescribed by the Migration Act or the regulations have been satisfied. A criterion for the grant of a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees ("the Convention"): Migration Act, s 36(2). That criterion for a protection visa is fulfilled where at the time of the decision the Minister "is satisfied that the applicant is a person to whom Australia has protection obligations under the [Convention]": Migration Regulations 1994 (Cth), reg 866.221. 3 Article 1A(2) of the Convention defines a refugee as 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 to, 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." Background Facts 4 The applicant is a Sri Lankan Tamil, born on 30 April 1976 (as the RRT found) in Trincomalee in the Eastern Province of Sri Lanka. He arrived in Australia at Sydney Airport on 20 June 1998, without travel documents. He was interviewed at Sydney Airport and made a number of Convention-related claims. He said, among other things, that he had been detained by the Liberation Tigers of Tamil Eelam ("LTTE") between 1989 and 1994 and forced to work for them. The applicant also said that he had been detained by the Sri Lankan Army in December 1994. He claimed that his father than been shot dead by the LTTE in 1995. The applicant said nothing, however, to suggest that he had been detained by the Sri Lankan security forces in 1997 and 1998. 5 The applicant applied for a protection visa on 22 June 1998. He supplied a statement in the Tamil language in support of his application. The statement repeated some of the claims made during his initial interview, but was different in certain respects from his earlier account. 6 The applicant was interviewed by a Departmental officer on 15 July 1998. On 6 August 1998, the Minister's delegate refused to grant the applicant a protection visa. The basis of the decision was that, on the applicant's own account, he was married to an Indian citizen and was therefore entitled to permanent residence in India. If returned to India he would enjoy protection against refoulement to Sri Lanka and would not be at risk of harm for any Convention reason. 7 On 12 August 1998, the applicant sought review by the RRT of the delegate's decision. The RRT held a hearing in respect of the application for review on 28 September 1998. At that hearing the applicant was represented by a migration agent. The representative made further written submissions to the RRT on 8 October 1998. The RRT's decision affirming the delegate's decision was given on 14 October 1998. The Applicant's Claims 8 The RRT, in its detailed reasons, identified the key claims made by the applicant (which differed in certain respects from earlier claims made by him) as follows: · The applicant's father had worked on the harbour at Trincomalee and had come under pressure to provide information to the LTTE. · The applicant could not continue his education beyond Year 7 because his family's house had been destroyed and his school books burnt. · Because of the family's problems with the LTTE and the Sri Lankan security forces, in 1988 they relocated to Valvedditturai on the Jaffna Peninsula, the applicant's mother's home town. · In 1988, the applicant had been detained for three days by the Indian Peace-Keeping Force ("IPKF"). During this period he was physically ill-treated. · Between 1989 and 1994, the applicant had been forced to work for the LTTE, although he refused pressure to fight for them. · In 1994, the applicant made his way to Colombo and thence to India, using a forged passport and visa. · While in Madras, he met and started living with an Indian woman. Her family disapproved and, fearing arrest as an LTTE sympathiser, he returned to Valvedditturai in early 1995. He married his Indian partner in May 1995. · In 1996, the applicant's father was caught in cross-fire between the LTTE and the Sri Lankan Army and was killed. At about this time, the applicant had been arrested and briefly detained by the Army. · In 1997, the Sri Lankan Army detained the applicant for three weeks. He was beaten and accused of being a member of the LTTE. · Because of continuous fighting around Valvedditturai the applicant, his wife and mother moved to live with an aunt in Vismadu, a jungle area under the control of the LTTE. In September 1997, the applicant's daughter was born. · In April 1998, the applicant was again detained by the Sri Lankan Army, for a period of three weeks. He was beaten and again accused of being a member of the LTTE. He identified three members of the LTTE in order to gain his release. · A close relative, who was a member of the LTTE, advised the applicant to escape in order to avoid revenge from the LTTE. · The applicant travelled to India in May 1998. He stayed with an agent organised by his elder brother, who lived in England. The agent arranged his travel to Australia. · The applicant feared that if he returned to Sri Lanka he would be killed either by the Sri Lankan security forces or the LTTE. He could not return to Jaffna or Trincomalee, because he would be at risk of harassment. · The applicant did not know what had happened to his wife and child. 9 The RRT recorded that, on the basis of these claims, the applicant's representative submitted that the applicant had a well-founded fear of being persecuted by reason of his race, political opinion and membership of a particular social group, namely, that he came from Valvedditturai which was a target of the Sri Lankan Government. The RRT's Reasons 10 The RRT outlined the nature and history of the conflict between the Government of Sri Lanka and the LTTE. It referred to military actions, bombings attributed to the LTTE and extra-judicial killings by members of the security forces. 11 The RRT then considered the applicant's claims. It noted substantial differences between the applicant's account at the airport on his arrival in Australia and that given at the hearing. The RRT recognised that due allowance had to be made for persons confronted with an interview immediately upon arrival in an unfamiliar country. Nonetheless, it could not accept the reasons given by the applicant for not mentioning at the original interview the critical events of 1997 and 1998 on which he had later relied. The RRT made the following findings: "Having regard to the inconsistencies between the account that the Applicant gave at the airport interview and the account which he has subsequently given in his statement, at the Departmental interview and at the hearing before me, I consider that the Applicant cannot be accepted as a witness of truth. I accept that the Applicant was born in Trincomalee and that his mother came originally from Valvedditturai. This fact is attested by his birth certificate and also by a statutory declaration from an Australian citizen who knew the Applicant's father and elder brother in Trincomalee. I accept that his father may have been killed in fighting between the LTTE and the Sri Lankan Army in 1995 or 1996. Having regard to the view I have formed of the Applicant's credibility, however, I do not accept that he and his family relocated to Valvedditturai in 1988, that he was arrested, beaten and detained for three days by the IPKF in 1988, that he was forced to work for the LTTE between 1989 and 1994, that he made his way to India in mid-1994 where he met the girl whom he married after his return to Sri Lanka in 1995, that he was briefly detained by the Sri Lankan Army after his father's death, that he was then detained by the Sri Lankan Army for three weeks in June 1997 and that he was again detained by the Sri Lankan Army for three weeks in April 1998." The RRT went on to say that, although it had rejected the applicant's account at the hearing and the Departmental interview, that did not mean it could accept what he had said at the original interview as truthful. The RRT found that his claims at that interview could not be believed. It declined to accept that he had ever been detained, either by the LTTE or the Sri Lankan forces. It did not consider that, if the applicant returned to Sri Lanka, he would attract the attention of the LTTE or the security forces. 12 The RRT accepted the applicant's claims concerning the destruction of his family house and the loss of his school books, but not that these events had occurred for a Convention reason. The rioting in Trincomalee at that time had affected the Sinhalese community as much as the Tamil community. In any event, the RRT did not accept, having regard to the current security situation in Trincomalee, that there was a real chance of events of this kind recurring if the applicant were to return there. The RRT stated its conclusion as follows: "I do not accept that the Applicant has a fear of being persecuted if he returns to Sri Lanka that is 'well-founded' in the sense set out in the authorities referred to above, whether his fear is said to be by reason of his race (Tamil), his imputed political opinion (support for the LTTE) or his membership of a particular social group (defined as Jaffna Tamil youths from Valvedditturai). I consider, to borrow the words used in [Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 ("Guo"), at 572], that his fear of persecution is 'merely assumed'." 13 The findings made by the RRT rendered it unnecessary for it to determine whether the applicant could obtain effective protection in India. However, the RRT found, on the basis of advice from the Department of Foreign Affairs and Trade, that the spouse if an Indian national does not, for that reason alone, have the right to permanent residence in India. Reasoning 14 It will be seen from the RRT's reasons that it firmly rejected the key elements of the applicant's account of events. To use the language of Merkel J in Emiantor v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 635, at 648, "the relevant findings make it apparent that the RRT reached a positive state of disbelief in respect of the key aspects of the [applicant's] claims." It is also fair to say that the findings were based on the RRT's opportunity to see, hear and question the applicant and on its rejection of his explanation for rather striking inconsistencies and omissions in the various accounts given by him. Mr Duncombe, who appeared for the applicant, did not dispute that the RRT was entitled, if not obliged, to make findings as to past events in order to provide a basis for assessing whether the applicant had a well-founded fear of persecution if he were to be returned to Sri Lanka: Guo, at 574. 15 Faced with these difficulties, Mr Duncombe relied, in substance, on only one ground to support the applicant's attack on the RRT's decision. He submitted that the RRT had erred by failing to make a specific finding as to whether the applicant had a subjective fear of persecution if he were to return to Sri Lanka. Mr Duncombe accepted that the phrase "well-founded fear of being persecuted" imports both a subjective and objective requirement. As Dawson J said in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, at 396: "[t]here must be a state of mind – fear of being persecuted – and a basis – well-founded – for that fear. Whilst there must be a fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear." See also Guo, at 570. Mr Duncombe also appeared to accept that the applicant could not succeed unless the decision-maker were satisfied that both the subjective and objective requirements had been met. 16 Nonetheless, Mr Duncombe contended that the RRT had erred in failing to make an express finding as to whether the applicant had a fear of persecution (whether or not well-founded). Mr Duncombe frankly acknowledged that there was nothing in the judgments of the High Court in cases such as Chan and Guo that supported his submission. However, he relied on the following comment by Merkel J in Emiantor, at 651: "As already pointed out the Chan test involves both a subjective and an objective element. Logically, it is only after the subjective fear is ascertained that an inquiry can commence as to whether, objectively, the fear held is well-founded." This comment was said to support the applicant's contention. 17 Rather curiously, Mr Duncombe did not address the remainder of Merkel J's observations, which were made in connection with applications for refugee status by two Nigerian nationals claiming to fear persecution by reason of political opinion. His Honour said this (at 651-652): "In the present case, the RRT in its decisions did not draw a distinction between the two elements; it purported to proceed to ascertain whether the applicants' alleged fear of political persecution was well-founded. The RRT concluded that the applicants' fear was not well-founded without expressly making a finding as to the fear allegedly held by the applicants and determining whether that fear was genuinely held. ... A finding that the applicants did not have any subjective fear of persecution is one which, if made, could be expected to have been made expressly: see Mason CJ in Chan at...387. A number of aspects of the applicants' account of their flight, which were not rejected by the RRT, could support the existence of a subjective fear.... The RRT's findings related primarily to the applicants' political activities and affiliations...and the other political activities that were said to have been likely to attract the attention of the authorities. In making those findings the RRT appeared to have proceeded on the basis of assuming the existence of the alleged fear in the applicants' favour and, on that basis, determining whether it was well-founded. Provided that the RRT identifies the fear it is assuming in favour of the applicants, ie the subjective element, then for it to proceed in that manner is permissible and no error of law arises by doing so. In my view, in its reasons for decision the RRT appears to have assumed in the applicants' favour, but without deciding, that they feared they were and would on their return be, sought by the military or governmental authorities by reason of their involvement in and association with MOSOP or NYCOP [two political organisations] and the organisation of the demonstration against the execution of Ken-Saro-Wiwa in Bori on 10 November 1995." 18 An appeal from Merkel J's decision was dismissed: Emiantor v Minister for Immigration and Multicultural Affairs, unreported, 20 July 1998 (Olney, Sundberg and Marshall JJ). Their Honours (at 3) addressed what they described as the "subjective fear" complaint as follows: "It is clear from a reading of the Tribunal's decision that, although there is no express finding in relation to subjective fear, the Tribunal disbelieved the appellants' evidence about their political profile. Because it did not believe their evidence about their Convention-based claim, it must have concluded that they did not have a Convention-based subjective fear, and there was thus no occasion to ask the objective question whether the fear was well-founded. The primary judge did not approach the matter in this way. He said that the Tribunal had assumed in favour of the appellants that they had a subjective fear, and then dismissed their claim on the objective limb. Because we think that in doing what it did the Tribunal did not fail to apply the subjective test, nothing turns on the fact that his Honour thought the same thing for a different reason." This seems to be a holding that the RRT is not obliged, as a matter of law, to make findings on both the subjective and objective elements of "a well-founded fear of being persecuted" and it is enough if either element of the claim is rejected. 19 It may be that the decision of the Full Court in Emiantor is a complete answer to the applicant's contention. For myself, I think that there is much to be said for the view that the RRT commits no error of law by rejecting the objective element of an applicant's claim, without making any express finding as to whether the applicant has a subjective fear of persecution if returned to his or her country of nationality. Although it will often be sensible to consider at the outset whether the applicant has a fear of persecution on Convention grounds, it may simply be unnecessary in a particular case to address that question having regard to the findings made on the objective element of the test. Be that as it may, it seems to me that in this case there are two further answers to the contention put forward by the appellant. 20 The first is that a fair reading of the RRT's reasons as a whole leads inevitably to the conclusion that it must have rejected the applicant's claim that he feared persecution for reasons of race, political opinion or membership of a particular social group. The RRT rejected all the key aspects of the factual claims made by the applicant. Indeed, it characterised his account as an "elaborate fabrication". It is true that the RRT accepted that the applicant's house had been destroyed and his school books burnt, but it expressly found that these events did not occur for a Convention reason. The RRT also accepted (or at least did not reject) the applicant's revised claim that his father had been killed as the result of being caught in the cross-fire between the LTTE and the Sri Lankan Army. But this, too, could not support the existence of a fear of harm for a Convention reason, particularly having regard to the RRT's findings concerning the current situation in Trincomalee. While the RRT did not expressly find that the applicant did not have a subjective fear of persecution in the Convention sense, the RRT's almost total repudiation of the applicant's factual case means that it must have rejected his claim to fear persecution (in the relevant sense) if he were returned to Sri Lanka. 21 The second reason is that, assuming that Merkel J's analysis is consistent with the reasoning of the Full Court in Emiantor, his Honour's approach does not support the applicant's contention. His Honour said that, provided the RRT identifies the subjective fear it assumes in favour of the applicant, it commits no error by determining whether the assumed fear is well-founded. At the very least, that is what the RRT did in the present case. The RRT identified the claims made by the applicant. It assumed in his favour that, as his representative had submitted, he feared being persecuted by reason of his race as a Tamil and his political opinion or imputed political opinion as a perceived opponent of both the LTTE and the Sri Lankan Government. Nonetheless, it rejected his claim because it found that any fear of persecution the applicant may have had was not well-founded. Similarly, it found that any assumed fear the applicant had concerning his return as a Tamil to Valvedditturai could not amount to a well-founded fear of persecution on a Convention ground. 22 Mr Duncombe rather faintly suggested that the RRT should have made further inquiries before drawing adverse conclusions from the disparities between the account provided by the applicant at the airport and the later accounts. Mr Duncombe did not develop the submission and did not explain what further inquiries the RRT was bound to make. There is no substance in this submission. Conclusion 23 The application must be dismissed, with costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville. Associate: Dated: 23 February 1999 Counsel for the Applicant: Mr K Duncombe Solicitor for the Respondent: Mr A Markus, Australian Government Solicitor Date of Hearing: 18 February 1999 Date of Judgment: 23 February 1999