Kamal v Minister for Immigration & Multicultural Affairs [2001] FCA 387

FEDERAL COURT OF AUSTRALIA

Kamal v Minister for Immigration & Multicultural Affairs [2001] FCA 387

MIGRATION – refugee – refusal of protection visa – whether Refugee Review Tribunal required to set out bases for all findings of fact pursuant to s 430 Migration Act 1958 – whether prosecution of applicant related to criminal offence or political opinions

Migration Act 1958 (Cth) ss 430, 476(1)(a), 476(1)(g)

Minister v Singh (2000) 98 FCR 469 followed Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham [2000] HCA 1 cited Tharmalingam v Minister for Immigration and Multicultural Affairs (Lindgren J, 19 May 1998, unreported) cited MOHAMED HASSEN KAMAL V MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 55 OF 2001 EMMETT J 28 MARCH 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N55 OF 2001

BETWEEN: MOHAMED HASSEN KAMAL

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 28 MARCH 2001

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 N55 OF 2001

BETWEEN: MOHAMED HASSEN KAMAL

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE: 28 MARCH 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant is a citizen of Sri Lanka. He arrived in Australia as a visitor in December 1995 and on 31 July 1997 he applied for a protection (Class AZ) visa. On 23 October 1997 a delegate of the Respondent, the Minister for Immigration and Multicultural Affairs ("the Minister"), made a decision refusing the application for a protection visa. The applicant made an application to the Refugee Review Tribunal ("the Tribunal") on 26 November 1997 for review of that decision. The Tribunal affirmed the decision on 16 February 2000. The applicant then sought review of the Tribunal's decision in the Federal Court on 9 May 2000. The Federal Court ordered that the decision of the Tribunal be set aside and that the matter be remitted to the Tribunal, differently constituted, for a determination in accordance with law. On 30 November 2000 the Tribunal, differently constituted, affirmed the decision not to grant a protection visa. The applicant now applies again to the Court, for an order of review of the decision of 30 November 2000. 2 The applicant relies on the ground contained in s 476(1)(a) of the Migration Act 1958 ("the Act"),which provides as a ground of review that procedures that were required by the Migration Act to be observed in connection with the making of the relevant decision were not observed. The applicant contends that, in the making of the decision, the Tribunal failed to comply with s 430(1)(c) of the Migration Act, in that the Tribunal failed to set out findings on material questions of fact. 3 The applicant made a number of claims before the Tribunal. He said that while he was in Sri Lanka he was given the nickname "Colombo Nana" by the Liberation Tigers of Tamil Ealam ("LTTE"), and that following the bombing of the oil storage facilities at Kolonnawa in Colombo, he was arrested, questioned at an army camp, assaulted and was then required to report to the army camp weekly. He said that, during the period of detention, the authorities stated that if they identified Colombo Nana they would kill Colombo Nana. Finally, the applicant claimed that the authorities now know that he was Colombo Nana. 4 More specifically, the applicant claimed that he supplied the LTTE with goods, such as clothes for uniforms, waterproof wristwatches, boots, helmets, printed posters and AK-47 bullets. He said that he supplied goods to the LTTE almost every week, but in small quantities, three dozen or four dozen of each item. He said that the AK-47 bullets came in boxes containing a dozen bullets and he used to supply five boxes at a time. He also claimed that he had supplied second-hand vehicles to the LTTE, such as Pajero Jeeps, Land Rover Jeeps and trucks, and that almost every week five or six LTTE members stayed at his home in Colonawa overnight. 5 The Tribunal considered that it was implausible that the LTTE would have required the applicant's assistance to purchase goods in Colombo in the way he suggested. The Tribunal in its reasons said that it put to the applicant that the LTTE makes its own uniforms, has its own printing presses, has its own ocean-going vessels, has amassed large stocks of weapons and buys in bulk. For example, in 1997 it hi-jacked a vessel transporting 32,400 mortar bombs. The Tribunal therefore considered that it was implausible that the LTTE would have asked the applicant to supply it with uniforms, boots, posters and so forth in such small quantities. Accordingly, the Tribunal concluded that there was no prospect of persecution by reason of involvement with the LTTE. 6 The applicant points to the fact that the country information before the Tribunal relating to Sri Lanka indicates that the LTTE's power and presence on the Jaffna Peninsula and in the north were different from its power and presence in Colombo, where the applicant resided at the relevant time. The applicant contends that, in the light of that difference, a question arises as to whether the country information relied on by the RRT applied to the LTTE throughout Sri Lanka, or only on the Jaffna Peninsula and in the north of the country. If the latter is the position, so it was contended, a question arose as to the source of supply of goods to the LTTE operatives in Colombo and whether they might have used local merchants to obtain supplies and print documents. 7 The applicant contends that, in the course of making its findings, the Tribunal relied on documents that required it to make a preliminary finding. The applicant claims the Tribunal did not make clear in its reasons whether it had perceived the distinction in the documents between the position in Jaffna and the north on the one hand, and Colombo on the other. The applicant advanced the proposition that the Tribunal had failed to deal with that question of fact within its chain of reasoning and that, since that fact was an open question and a material fact, there was an error in failing to satisfy s 430(1)(c). 8 However, the applicant accepts that there was material before the Tribunal upon which the Tribunal could base a finding concerning the practice of the LTTE throughout Sri Lanka. In other words, there was no contention based on s 476(g) of the Act that there was no evidence or other material to justify the making of the decision. 9 Section 430(1) does not impose any obligation on the Tribunal to come to a correct decision or to prepare a statement disclosing a satisfactory process of reasoning leading to the decision it has reached. Generally, the section requires no more than a recording of matters that are essentially matters of fact, being the decision to which the Tribunal came, the actual reasons for coming to that decision and the findings of fact that were actually made and the material on which those findings were based. There is no requirement in s 430 to give reasons for rejecting or attaching no weight to evidence or other material that would tend to undermine any finding it made. The Tribunal is not obliged to analyse material before it and to give reasons for not accepting any part of it that might be thought to be inconsistent with the conclusions it reached - see generally Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845,(2000) 98 FCR 469 at [44] and [46]. 10 Further, if a primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the subset of reasons why it accepted or rejected individual pieces of evidence. Where the reasons for disbelief are apparent by the use of the word "implausible", that is sufficient - see for example, Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham [2000] HCA 1, 168 ALR 407 paragraph 67. 11 I consider that the process of reasoning adopted by the Tribunal started with the finding of the following facts: · the LTTE makes its own uniforms; · the LTTE has its own printing presses; · the LTTE has its own ocean-going vessels; · the LTTE has amassed large stocks of weapons; and · the LTTE buys in bulk. As expressed, those findings were as to a practice of the LTTE without limitation as to area. Accordingly, in its terms it would apply to Colombo. The fact that it may also have been open to the Tribunal to make such findings only in respect of the Jaffna Peninsula or the north is not a matter that required the Tribunal to address that distinction specifically. I do not consider that the applicant has demonstrated any failure to comply with s 430(1)(c) in relation to its reasoning and finding that it was implausible that the LTTE would have asked the applicant to supply it with equipment in small quantities. 12 As the Tribunal said, it put that question to the applicant and gave him an opportunity to address its concern that his claims of supplying goods to the LTTE were implausible. The applicant did not advance the possibility that the practice of the LTTE was limited to Jaffna and the north by way of refutation or justification. In effect, the applicant now seeks to put forward an argument that goes to the merits of the decision which he failed to put when given the opportunity in the course of hearing before the Tribunal. Accordingly, I consider that the applicant's contention fails in this respect. 13 The applicant advanced a further ground, but accepted that in order to succeed in the application presently before the Court, he must succeed on both questions. It is therefore not strictly necessary for me to decide the second question. However, since the matter was argued, I will deal with it briefly. The contention commenced with observations made in Tharmalingam v Minister for Immigration and Multicultural Affairs (Lindgren J, 19 May 1998, unreported). Lindgren J observed that prosecution for an offence, even an offence that applies generally to the whole of the population, may in particular circumstances be a pretext for punishing the accused for his political opinions. Where there is extrajudicial or unduly severe punishment imposed or threatened in connection with such a prosecution, an inference may be open that the punishment is to be imposed not for contravention of criminal law but for a Convention reason. 14 The applicant points to the failure by the Tribunal in its findings and reasons to deal expressly with assertions made by the applicant concerning Colombo Nana. In the section of its reasons dealing with the applicant's evidence, the Tribunal records his claim that during the period after the alleged attack on the oil refinery, he had been beaten, kicked and threatened by the authorities. He claimed that they had asked him if he knew who Colombo Nana was. He said that in this way he had realised that they did not know that he was Colombo Nana. He said that they told him that if he caught and handed over Colombo Nana he would be released. He also said that they had told him that they would kill Colombo Nana in front of him. The applicant asserted to the Tribunal that, in that way, he had found out that they were waiting to kill him and that that was why he had spent a lot of money and had come to Australia. 15 In the section of its reasons in which it made findings and gave reasons for its decision, the Tribunal referred to Colombo Nana but did not consider the possible inference that, because of the threat to kill Colombo Nana, any prosecution of the applicant for assisting the LTTE would be because of an assumption that he had a political opinion: one sympathetic to the LTTE. Three passages in the Tribunal's reasons were relied on by the applicant. 16 The first is the following passage: "Even if I were to accept, therefore, that the authorities in Sri Lanka have now identified the applicant as 'Colombo Nana' and that they now know of his activities supplying goods and vehicles to the LTTE and harbouring members of the LTTE, I would consider that what he would face if he were to return to Sri Lanka would be prosecution under a law of general application rather than persecution for a convention reason." Attention is drawn to the fact that no reference is made at that point to the possibility of any inference being drawn by reason of the threat to kill Colombo Nana. 17 The Tribunal then went on to say: "Even if I were to accept the applicant's account of the assistance that he provided to the LTTE and his claim that he was nicknamed 'Colombo Nana', I would not accept that the Sri Lankan authorities would impute a political opinion in support of the LTTE to the applicant by reason of his activities in supplying goods and vehicles to the LTTE and harbouring members of the LTTE or by reason of his being nicknamed 'Colombo Nana'." Once again, the Tribunal failed to address the possibility that by reason of the threat to kill Colombo Nana, an inference might be drawn that a political opinion was being attributed to the applicant. 18 Finally, the Tribunal also said as follows: "Even if I were to accept, therefore, that there was a real chance that, if the applicant were returned to Sri Lanka he would face prosecution for having assisted the LTTE, and that he would be extrajudicially punished in the same manner as other criminal suspects in Sri Lanka, I would not accept that he would be singled out for prosecution, or that he would be treated differently from others accused of the same offence, by reason of his imputed political opinion or for any other convention reason." Once again, attention is drawn to the fact that, while reference is made to extrajudicial punishment, no reference is made to severe punishments such as killing. 19 It was open for the Tribunal to find that, even though the applicant may face serious harm including death, that would not be because of any imputed political opinion. So long as the Tribunal found that the harm would be meted out irrespective of political opinion, the severity of the harm is not material. In fact, the Tribunal found that the most natural construction for the authorities to put on the applicant's actions was that he supplied goods and vehicles to the LTTE and harboured members of the LTTE for financial gain. That is a finding that was open to the Tribunal. If it had been necessary to decide this question, I would probably not be satisfied that there was any error in failing to address the possibility of an inference being drawn. The Tribunal made a finding of fact that any harm that might befall the applicant would not be by reason of any imputed political opinion but by reason of his committing offences that applied generally throughout Sri Lanka. 20 I conclude that the application should be dismissed with costs.