Buultjens v Minister for Immigration & Multicultural Affairs [2001] FCA 1058

FEDERAL COURT OF AUSTRALIA

Buultjens v Minister for Immigration & Multicultural Affairs [2001] FCA 1058 Migration Act 1958 (Cth) ss 29, 36, 65, 417, 476 Peiris v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 413, referred to LEWELLYN FREDERIC BUULTJENS v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V 612 of 1999 SPENDER J BRISBANE (heard in Melbourne) 7 SEPTEMBER 2001

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V612 OF 1999

BETWEEN: LEWELLYN FREDERIC BUULTJENS

APPLICANT

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: SPENDER J

DATE OF ORDER: 7 SEPTEMBER 2001

WHERE MADE: BRISBANE (heard in Melbourne)

THE COURT ORDERS THAT: The application be dismissed with costs, to be taxed if not agreed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V612 OF 1999

BETWEEN: LEWELLYN FREDERIC BUULTJENS

APPLICANT

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: SPENDER J

DATE: 7 SEPTEMBER 2001

PLACE: BRISBANE (heard in Melbourne)

REASONS FOR JUDGMENT 1 This is an application to review the decision of the Refugee Review Tribunal (the Tribunal) made on 8 October 1999 affirming the decision of the Minister's delegate that Lewellyn Frederic Buultjens (the applicant) was not 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, (compendiously "the Convention"), and affirming that the decision of the delegate of the respondent Minister that the applicant was not entitled to a protection visa. The applicant applies under subs 476(1) of the Migration Act 1958 (Cth) (the Act) for review of that decision. 2 Section 29 of the Act provides that subject to the Act, the respondent (the Minister) may grant a non-citizen permission, to be known as a visa, to travel to and enter Australia, to remain in Australia, or to do both. Section 65 of the Act provides that after considering a valid application for a visa the Minister, if satisfied of the matter specified in the section, is to grant the visa, or, if not so satisfied is not to grant the visa. The validity of the applicant's application for a protection visa is not in question. One of the matters specified in s 65 is that the criteria for the visa specified by the Act or the Regulations have been satisfied. Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant for it is a non-citizen in Australia to whom Australia has protection obligations under the Convention. 3 The applicant is a 56-year-old Sri Lankan man of Burgher descent who arrived in Australia on 27 June 1996. He was granted a Class 435 visa on 12 March 1997 for the duration of the civil unrest in Sri Lanka at the time. On 30 June 1997, before the expiry of that visa, the applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs under the Act. On 18 July 1997 a delegate of the Minister refused to grant a protection visa. On 20 August 1997 the applicant sought review of that decision, and on 8 October 1999 the Tribunal affirmed the decision of the delegate that the applicant was not entitled to a protection visa. 4 The applicant was born in Matara in the southern province of Sri Lanka on 6 June 1943. He was married on 28 June 1972 and has three children by that marriage. His wife and two daughters remain in Sri Lanka. His son is a student in Australia. His mother and sister are also in Australia. 5 In 1972, pursuant to the Land Reform Act which vested all land in the government of Sri Lanka, the applicant and his family were dispossessed of a substantial amount of real estate. While stating discrimination of the Sri Lankan government in favour of Sinhalese in relation to employment, university entrance and commerce, the applicant pursued a successful career as a businessman and accumulated a considerable amount of personal wealth. His business activities concerned the import and export of a wide variety of goods ranging from military equipment to food. He travelled abroad on several occasions and formed many business contacts all over the world. The Tribunal noted the account of the applicant that since arrival in Australia he has transferred his business to Australia and no longer has any dealings or company in Sri Lanka. 6 Before the Tribunal, the applicant explained that he feared returning to Sri Lanka as a consequence of his involvement in an attempt to import sugar considerably cheaper than the price that was then occurring. He told the Tribunal that in 1995 the newly appointed Minister for Trade was a friend and neighbour of his. One of the Minister's objectives was to bring the cost of living down. The Minister asked the applicant and other businessmen if they could assist. The applicant said that after he had thought about it for a while he suggested to the Minister that he could import sugar for a considerably cheaper price than was then occurring. He put in place some contractual arrangements with the Co-operative Wholesale Establishment (the CWE) which was responsible for handling the purchases of sugar, but his activities came to the attention of the sugar cartel who were the principal suppliers of sugar to the CWE. The applicant was not able to identify to the Tribunal who the members of the sugar cartel were, other than that they consisted primarily of Tamil businessmen in the sugar industry, and one Sinhalese. He gave evidence that subsequent to his attempts in relation to the importation of sugar, he was on a number of occasions threatened. He complained to the police but was unable to identify those who had threatened him and, according to the applicant, he was told by the police that for his own sake he should consider pulling out of the deal. Ultimately, his fear of the cartel prompted him to withdraw from the contractual arrangements. Subsequently, however, threats and harassment continued. The applicant told the Tribunal that only after he had left Sri Lanka had his contact discovered that the whole sugar industry deal was the result of manipulation within the Minister's office and the CWE to increase the paybacks they received from the sugar cartel. He said that the Minister of Trade had been used as a "cats paw" by his bureaucrats, and he had been targeted for the deal as he was an expendable Burgher. The whole purpose of the arrangement had been to force the cartel to increase the amount of kick-backs to the CWE. 7 In an important finding, the Tribunal said: "When carefully examined it is clear that the Applicant claims that he fears persecution should he return to Sri Lanka because of his race. i.e. he is a Burgher, and because he fears the Sugar Cartel will exact vengeance upon him. I accept that the Applicant hold[s] such fears. Whether those fears are well founded or are held for a Convention reason is a different matter." 8 The Tribunal, in what I may say is a careful and thorough expression of its views, examined the claim of the applicant that he would be persecuted should he return to Sri Lanka because of his race. The Tribunal found that there was a well-founded fear of persecution. The Tribunal said: "Turning to the Applicant's expressed fears that he will be persecuted by the Sugar Cartel should he return to Sri Lanka, I am satisfied on the Applicant's evidence that there is a real chance that this will happen. The issue, however, is whether that persecution would be for a convention reason." 9 The Tribunal then considered that aspect of the matter and concluded: "There is no evidence to suggest that the persecution which the Applicant fears results from his political opinions, actual or imputed. There is no suggestion from the evidence that the Cartel is motivated by the Applicant's religion or nationality. The reality is that the Cartel is pursuing the Applicant in order to punish him for infringing its commercial interest. While I have no doubt that there is a real chance that the Applicant will be persecuted by the Cartel should he return to Sri Lanka such persecution would not be for a Convention reason." 10 The central element of the applicant's review to this Court is the claim that "the Tribunal failed to appreciate the political dimension in the cartel's actions against the applicant". Ms Germov, counsel for the applicant, relied particularly on the fact that the threats and harassment continued after the deal to import sugar had been scuttled, and suggested that this feature falsified the characterisation of the threats as being by persons protecting their commercial interests, the suggestion being that those interests had been satisfied when the applicant pulled out of the proposed importation in competition with the sugar cartel. 11 The short answer to this point, and indeed to the applicant's appeal, is that the Tribunal very carefully considered whether the accepted persecution of the applicant, should he return to Sri Lanka, was for a convention reason. The Tribunal said: "There is nothing in the evidence that would support a conclusion that the motivation for the Applicant's treatment by the Cartel is his race. Similarly, I find that this is not a case where the Applicant is being persecuted because of his real or imputed political opinion, unlike the situation in Voitenko v MIMA – Unreported Full Court of the Federal Court NG965 of 1998, 14 April 1999 – where the applicant was engaged in an anti-corruption drive, which may have resulted in the authorities imputing an adverse political opinion to him. Indeed, in this case the government, in the form of the Minister of Trade, was clearly aware of the commercial nature of the dispute." 12 Whether the persecution was based on the political opinions, actual or imputed of the applicant, was a factual issue for the Tribunal, not for the Court. Peiris v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 413 was concerned with a Sri Lankan who feared for his safety as a result of the taxi war that arose between taxi drivers in Colombo who were UNP supporters, and those who were members of the opposing People's Alliance Coalition (the PAA). The Tribunal in that case had accepted that Mr Peiris had left Sri Lanka in fear of his safety from attacks by the PAA. The Tribunal, however, found that merely because a powerful politician behind the PAA used government connections to engage in thuggery which resulted in persecution, it did not follow that the persecution was for reasons of political opinion. The instance arose, said the Tribunal, because the PAA wanted control of the taxi franchise. Hill J said, at [22] – [23]: "The submission comes dangerously close to asking the court to reject a factual conclusion which was open to the tribunal to the effect that those persecuting the applicant were wholly lacking in interest in the applicant's political views. Given the finding of fact which the tribunal had made, it is difficult to challenge the tribunal's decision in the way the applicant seeks to. There is no doubt that the tribunal accepted that politics and criminality were connected. There is no doubt also the tribunal accepted that what happened to the applicant could have been related to political opinion. However, the tribunal found as a fact that it was not. That was a finding for it and not for the court." 13 No legal error has been demonstrated in the findings of the Tribunal to which it arrived. It follows that the application to review the Tribunal's decision must be dismissed with costs. 14 There is one matter, however, to which reference should be made. 15 The Act, in s 417, reposes in the Minister power to substitute a more favourable decision in circumstances where the Minister thinks it is in the public interest to do so. Where the Minister thinks it is in the public interest to do so, the Minister can substitute for a decision of the Tribunal another decision, whether or not the Tribunal had the power to make that other decision. 16 The Tribunal has found that the applicant was a credible witness. The Tribunal accepted what the applicant had told the Tribunal as to his background and his past business dealings. In particular, the Tribunal said: "I accept the Applicant's evidence as to the arrangement to import sugar and the threats and intimidation he has been subject to at the hands of the Sugar Cartel. I accept that he left Sri Lanka because he was fearful of the treatment he may receive from the Sugar Cartel. I accept that his wife and family in Sri Lanka remain fearful that the Sugar Cartel may exact revenge for his business dealings on them. I accept that the Applicant's family in Sri Lanka has been the subject of on going harassment at the instigation of the Sugar Cartel. I accept the Applicant's evidence in relation to his attempt to sell Patrol Boats to the Sri Lankan Navy. I accept that the Applicant holds a genuine fear that if he or his son return to Sri Lanka they will be harmed by agents of the Sugar Cartel. I accept that the Applicant does not fear returning to Sri Lanka because of his involvement in an attempt to import patrol boats for the Sri Lanka Navy." 17 It is plain that the applicant can contribute strongly to the economic well-being of Australia, and has significant business skills and resources which could be of benefit to this country. He is not eligible, as I understand it, for immigration on a business basis, merely because of his age, but there seems to be no countervailing reason by way of health or other considerations, including character, against the conclusion that it would be in the public interest of Australia for him to be permitted to remain here. 18 The significant consideration that might be relevant to a Ministerial consideration of the position of the applicant is the unique or exceptional circumstance that the Tribunal has found that there is a significant threat to the applicant's personal security, human rights or human dignity should he be returned to Sri Lanka and, in particular, the Tribunal found that should he be returned to Sri Lanka the applicant would be exposed to persecution, but that the persecution would not be for a convention reason. 19 Paragraphs 4.2 and 4.2.1 of the Ministerial Guidelines for consideration of whether it is in the public interest to substitute a more favourable decision under the Act, seem to have relevance here. 20 This last consideration, however, is a matter for the applicant and his advisers and perhaps for the Minister.