FEDERAL COURT OF AUSTRALIA Mohammad Rashid v Minister for Immigration & Multicultural Affairs [2000] FCA 102 MOHAMMAD DILSHAN MOHAMMAD RASHID v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 113 OF 1999 WHITLAM J 9 FEBRUARY 2000 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 113 OF 1999 BETWEEN: MOHAMMAD DILSHAN MOHAMMAD RASHID APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: WHITLAM J DATE OF ORDER: 9 FEBRUARY 2000 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application is 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 113 OF 1999 BETWEEN: MOHAMMAD DILSHAN MOHAMMAD RASHID APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: WHITLAM J DATE: 9 FEBRUARY 2000 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an application under s 476 of the Migration Act 1958 for an order of review in respect of a decision of the Refugee Review Tribunal ("the Tribunal") made on 14 September 1999. The Tribunal affirmed the decision of the respondent's delegate not to grant the applicant a protection visa. 2 The applicant is a Sri Lankan national and a Muslim. He arrived in Australia on 21 May 1996 using false documentation and applied for a protection visa on 27 June 1997. The applicant was described by his migration agent as "an obscure timber merchant from a backwater in the north western province of Sri Lanka". He told a story of having sold timber to persons he believed to be members of the Liberation Tigers of Tamil Eelam ("LTTE"), a Tamil separatist organization which has been waging an armed insurrection against the Government of Sri Lanka. The applicant said that he understood that the timber "was ostensibly to be used for building purposes". Some considerable time after the last of seven or eight such sales, he heard that an acquaintance, who had trade links with the LTTE and had been arrested, had been killed in police custody. The applicant then told his uncle, who owned the timber business, of his dealings with the suspected LTTE members. His uncle told him to leave the area immediately. Subsequently he was told that the police came to try to find him both at the business he had left and at his family's home. The applicant then arranged to leave Sri Lanka with a false passport. 3 The case that the applicant put to the Tribunal was that a pro-LTTE political opinion would be imputed to him because he spoke Tamil, he had Tamil friends and acquaintances, and he had supplied timber to the LTTE. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a so-called Convention reason. 4 At the end of its statement under s 430(1) of the Act, the Tribunal said: "In summary, I am prepared to accept for the purposes of this review that, if the Applicant returns to Sri Lanka now or in the reasonably foreseeable future, he will face prosecution for having supplied timber to the LTTE. For reasons given above, I do not accept that in seeking to prosecute the Applicant for this crime the Sri Lankan authorities are motivated by any political opinion they may impute to him or any other Convention reason. I do not accept that the Applicant will be treated differently from any other offender, or punished more harshly for this crime, by reason of any political opinion that may be imputed to him or for any other Convention reason. I do not accept, in any event, that the authorities will impute to the Applicant a political motivation for supplying timber to the LTTE. Since the Applicant supplied timber to the LTTE in the course of his business I consider that the most natural construction for the authorities to place upon his actions is that his motivation was commercial: that is, that he was motivated by profit." 5 The amended application before the Court relies upon the ground specified in s 476(1)(g) of the Act and sets out the following particulars: "a) The Tribunal based its decision on the existence of a particular fact, being that the applicant had committed an offence in terms of section 5 of the Prevention of Terrorism Act (Sri Lanka), in supplying timber to members of the Liberation Tigers of Tamil Eelam (LTTE), and that fact did not exist. b) The Tribunal based its decision on the existence of a particular fact, being that the police were seeking the applicant with the object of prosecuting him under the criminal law of Sri Lanka, and that fact did not exist." 6 The applicant's adviser argued that the selling of timber was not a crime under Sri Lankan law and that the police must be seeking his client because a pro-LTTE political opinion had been attributed to him. In its statement the Tribunal records in excruciating detail the arguments advanced by the adviser, both in writing and orally in Socratic dialogue with the Tribunal. 7 The Tribunal said (at p 17): " … I am satisfied that the police are seeking the Applicant because they know or suspect that he supplied timber to the LTTE and that this constitutes an offence against the laws of Sri Lanka. … it constitutes treason if nothing else although I accept that it is likely that a lesser charge would be preferred." 8 Earlier in its statement the Tribunal had noted (at p 16) a reference to s 5 of the Prevention of Terrorism Act in Sri Lanka. However, I accept the submission of counsel for the respondent that the Tribunal did not make a finding as alleged in paragraph (a) of the particulars in the amended application. 9 So far as the other alleged particular fact is concerned, the Tribunal went on, after making the finding I have set out in paragraph 7 above, to look for a causal nexus with one of the Convention reasons. It said (at pp 17-18): "[Therefore] the question before me is whether the Applicant is being singled out for prosecution for a Convention reason or whether he will be treated differently or punished more harshly for a Convention reason." 10 The Tribunal considered that the police would impute to the applicant a commercial, rather than an ideological, motivation in dealing with the LTTE. It also said that a political opinion favouring the LTTE would not be imputed to him for the further reason that Muslims, particularly in the subject area, resent the LTTE. The Tribunal acknowledged that "commercial motivation and an ideological motivation are not mutually exclusive", but considered that the police would put the "obvious" construction on the applicant's actions, namely, that he was seeking to profit from a commercial opportunity. Further, the Tribunal did not consider the fact that there were clashes between Sinhalese and Muslim communities meant that Sinhalese police officers would impute a pro-LTTE political opinion to a person in the applicant's circumstances. 11 The Tribunal said (at pp 21-22): "… on a correct analysis the Applicant will be prosecuted for his action in assisting an organisation that is conducting an armed insurgent campaign against the government of his country rather than for any political opinion that may be imputed to him. … [Whether] the Applicant is charged with an offence under the ordinary criminal law or under the Prevention of Terrorism Act, the offence will be one which would apply equally to anyone else accused of assisting an organisation engaged in an armed insurgent campaign against the Government of Sri Lanka. As it happens, the LTTE is the only such organisation at present but the relevant offences are neutral as regards the political opinions of the actors. I do not accept, therefore, that it follows from the mere fact that the Applicant may face prosecution for his actions in supplying the LTTE with timber that he is being singled out for prosecution by reason of an imputed political opinion." 12 Mr Karp, who appears for the applicant, has tendered copies of Sri Lankan legislation annexed to an April 1977 report by a Danish Immigration Service fact-finding mission to Sri Lanka. He submits that selling timber to the LTTE is not, of itself, an offence under that legislation. Nonetheless, even accepting that to be so, I do not think that the no evidence ground in s 476(1)(g) of the Act is made out. In the first place, the applicant said in his initial statutory declaration that his involvement in the timber sales "implicated" him and would have brought him under suspicion had he informed the police. Secondly, the Tribunal can readily infer that the applicant would have had "information relating to the movements or whereabouts" of the purchasers of the timber such as might bring him within s 5 of the Prevention of Terrorism (Temporary Provision) Act, No 48 of 1948. The applicant himself also admitted that the timber was "ostensibly to be used" for building. The emergency regulations annexed to the Danish report provide for the punishment of acts preparatory to the commission of the offences under those regulations. Accordingly, there was material before the Tribunal from which it could be satisfied that the applicant "may" face prosecution in Sri Lanka. 13 The application will be dismissed with costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam. Associate: Dated: 9 February 2000 Mr L.J. Karp of McDonnells, solicitors, appeared for the applicant. S.B. Lloyd of counsel, instructed by the Australian Government Solicitor, appeared for the respondent. Date of hearing: 8 February 2000 Date of judgment: 9 February 2000