FEDERAL COURT OF AUSTRALIA Brandigampolage v Minister for Immigration & Multicultural Affairs [2000] FCA 1400 MIGRATION – decision of Refugee Review Tribunal refusing protection visa – applicant Sri Lankan citizen of Singhalese faith – claimed fear of harm because provided assistance to Tamil terrorist – Tribunal rejected persecution based upon political opinion – Tribunal did not consider persecution based upon race – whether Convention extends to protect against harm motivated by race even where not motivated by reason of race of the asylum seeker – alternative basis for decision WORDS & PHRASES – "for reason of race" Migration Act 1958 (Cth) Paramananthan v Minister for Immigration & Multicultural Affairs (1998) 94 FCR 28, applied SANATH SUMEDHA BRANDIGAMPOLAGE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 300 OF 2000 MOORE J 5 OCTOBER 2000 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 300 OF 2000 BETWEEN: SANATH SUMEDHA BRANDIGAMPOLAGE APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: MOORE J DATE OF ORDER: 5 OCTOBER 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 300 OF 2000 BETWEEN: SANATH SUMEDHA BRANDIGAMPOLAGE APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: MOORE J DATE: 5 OCTOBER 2000 PLACE: SYDNEY REASONS FOR JUDGMENT Introduction 1 This is an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 16 March 2000 affirming a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") not to grant the applicant a protection visa. A criterion for the grant of such visas is that an applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention"). Background 2 The applicant is a citizen of Sri Lanka of the Singhalese faith. He arrived in Australia on 10 October 1996 and lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 30 July 1997. On 12 December 1997 his application was refused by a delegate of the Minister, and on 9 January 1998 the applicant sought review of that decision before the Tribunal. 3 Essentially the applicant claimed before the Tribunal that he feared that he would be persecuted by the Singhalese authorities because he had provided accommodation to a Tamil terrorist, who had asked the applicant to secrete a package on an Air Lanka aircraft. It was claimed that the authorities would persecute the applicant because they believed that he had provided assistance to the Tamil cause. The Tribunal's reasons 4 The reasons for decision of the Tribunal commenced with a discussion of the relevant legislation and what is comprehended by the definition of "refugee" and by the notion of "persecution". Reference was made to the judgments of the High Court in Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379, Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 and Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559, and to the judgment of the Full Court of this Court in Ram v Minister for Immigration & Ethnic Affairs (1995) 57 FCR 565. The Tribunal then summarised the claims made by the applicant by way of written submissions and oral evidence. 5 Under the heading "Findings and Reasons" the Tribunal accepted various claims made by the applicant. The Tribunal accepted that the applicant had provided board to a Tamil house-guest who was arrested on suspicion of terrorist activities, though the Tribunal noted that the applicant had not been involved in these activities himself. The Tribunal also accepted that the applicant was arrested and questioned about the house-guest, and that he was "mistreated" whilst under arrest. The Tribunal also appears to have accepted that in the course of being questioned the applicant was asked why he had helped Tamils and why he would serve a Tamil in his home, and that he had been called "a Singhalese slave to a Tamil." 6 The Tribunal rejected the application for refugee status on the grounds that it could not be said that the applicant might be persecuted for a political opinion, actual or imputed. In its reasons the Tribunal stated: "There is no evidence that supports a conclusion that the Applicant held or was perceived to hold any relevant opinions that could be characterised as political. He states that he holds no relevant political opinions. There is no evidence that the Sri Lankan authorities actually did attribute a political opinion to him. There is no evidence as to the general situation in Sri Lanka that would provide a basis for attributing Singhalese assistance to the LTTE to political motives … The Applicant himself believes that his persecutors concluded that he assisted the LTTE for money. His belief is based on their questioning of him. They asked how much money he had made from his activities. They did not ask him any questions suggesting that they believed that he had acted out of a political motive … I am satisfied that no motives, other [than] a desire for personal gain and possibly assisting a friend, have been imputed to the Applicant. I am not satisfied that such motives would amount to a political opinion, whether actually held by the Applicant or imputed to him by his persecutors." For "reasons of race" 7 Counsel for the applicant submitted that the Tribunal, erroneously, failed to consider whether the applicant had a well-founded fear or persecution, not on the grounds of political opinion, but "for reasons or race". It was said that the applicant faced persecution because he assisted a Tamil. This submission assumes a wide operation of the Convention in that the applicant would not simply be claiming persecution motivated by the fact of his own race (in the sense that he was perceived to be a traitor to it), but also because of assistance that he is believed to have provided to members of another race. 8 Counsel were unable to point to any authority dealing with the operation of the Convention in this way though perhaps this is not surprising given that cases involving the provision of assistance to a member of another race often raise for consideration allegations of persecution for reasons of political opinion. Counsel for the respondent argued that "for reasons of race" could, at most, extend only to instances of persecution because of an asylum seeker's actual or imputed race in a way analogous to the reach of the Convention in relation to political opinion. In this case, it was submitted, the applicant was not persecuted because of his own race, and nor was he imputed to be a Tamil. Counsel for the applicant, on the other hand, submitted that where race is the motivation for harm caused there is no reason to limit the ambit of the Convention to instances in which that harm is caused because of the race, actual or imputed, of the asylum seeker. 9 The interpretation of the Convention advanced on behalf of the applicant may be correct though I would imagine it is controversial. However for reasons which will emerge shortly it is a matter I need not address. Accepting, for the moment, that the interpretation of "for reasons of race" contended for by counsel for the applicant is not to be preferred, the Tribunal may nonetheless have fallen into error by failing to analyse the applicant's case as one where the applicant feared harm as a traitor to his own Sinhalese race though again this may involve an unduly wide reading of the Convention. 10 It was submitted by Counsel for the respondent that the applicant's case had not been articulated in terms of "race" and that the Tribunal was entitled to take into account the manner in which the case was articulated in coming to its decision: see Paramananthan v Minister for Immigration & Multicultural Affairs (1998) 94 FCR 28. However, as submitted by counsel for the applicant, the evidence of the applicant regarding the nature of the questioning by the authorities, set out in par 5 above, may have raised, though I accept only obliquely, a claim under the Convention (assuming the protection it affords extends to circumstances where persecution might arise, not because of the fact that person was of a particular race, but rather because their conduct was inimical to the interests of their race) that the applicant was persecuted for reasons of race, albeit his own race. 11 The failure of the Tribunal to consider a claim of persecution by reason of race was said to give rise to three grounds of review: first, the error amounted to a failure to make a finding on a material question of fact, which constituted a failure to observe a procedure required by the Act, under ss 430(1)(c) and 476(1)(a); second, a constructive failure of the Tribunal to exercise its jurisdiction, reviewable under s 476(1)(c), and; third, the Tribunal made an error of law, under s 476(1)(e), by misunderstanding its task (see the second ground), and by failing to give reasons. However, even though the Tribunal did not consider the applicant's case as one based upon reasons of race (either on what I might describe as the more traditional view of the race ground or the wider view advanced by counsel for the applicant in these proceedings), this did not amount to a material reviewable error on any of the grounds raised in the application, for the reasons outlined below. An alternative basis for the Tribunal's decision 12 The Tribunal's reasons reveal an alternative basis for the conclusion that the applicant does not have a well-founded fear or persecution. Under the heading "Findings and Reasons" the Tribunal stated: "I note that the Applicant claims that he was released by the authorities, without any real effort being made to prevent his leaving Sri Lanka. I note also the Applicant's evidence that the authorities have made further searches of his house and confiscated his wife's passport. I found the Applicant[']s evidence generally unconvincing. It seems difficult to understand why the Sri Lankan authorities would release a man who they suspected of assisting an LTTE terrorist, and possibly being involved in an attempt to destroy an Airlanka aeroplane. It is even more difficult to understand why the authorities, even if they were persuaded to release such a person, would not find out if the person had a passport and confiscate it. Especially, if the person was an airline employee, and as such perhaps more likely to have travelled than most… I am not satisfied that the Applicant is under ongoing suspicion of assisting in terrorist activities. I am satisfied that if he were, he would probably not have been released. Even if he were released, the existence of his passport would have been discovered and it would have been confiscated. I am satisfied that, if there were any real chance that the Applicant was to suffer serious or significant harm as a result of the suspicions attaching to his house guest, steps would have been taken to prevent him from leaving Sri Lanka… I am satisfied that the chance that the Applicant will be persecuted as a result of having a Tamil house guest … is remote." 13 Significantly these passages are followed immediately by the statement that: "Even if his claims are taken at their highest I would not be satisfied that the Applicant is … at any risk of persecution for Convention reasons." The Tribunal then proceeds to discuss whether the applicant might be persecuted for reasons of political opinion and concludes that matter with the passages set out in par 6 above. 14 The structure of the Tribunal's reasons is instructive because it indicates that the Tribunal concluded that the Sri Lankan authorities were not interested in pursuing the applicant for any reason, before moving on to conclude (possibly erroneously) that even if he were of interest it would not be for a Convention reason. This first aspect of the Tribunal's reasoning is independent of the second and was conclusive of the applicant's claim. 15 Accordingly, the application is dismissed and the applicant is to pay the respondent's costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore. Associate: Dated: 5 October 2000 Counsel for the applicant: Mr T Reilly Solicitor for the applicant: Nan Solicitors Counsel for the respondent: Mr G Elliott Solicitor for the respondent: Australian Government Solicitor Date of Hearing: 4 September 2000 Date of Judgment: 5 October 2000