Xavier v MIMA [2001] FCA 1781

FEDERAL COURT OF AUSTRALIA

Xavier v MIMA [2001] FCA 1781

MARINO VERNON MARORAJ XAVIER & ANOR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V 140 OF 2001 NORTH J 7 NOVEMBER 2001 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 140 OF 2001

BETWEEN: MARINO VERNON MANORAJ XAVIER

FIRST APPLICANT

ROMESH ANTHONY XAVIER

SECOND APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: NORTH J

DATE OF ORDER: 7 NOVEMBER 2001

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicants are to pay the respondent's costs of and incidental to the application. 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 V 140 OF 2001

BETWEEN: MARINO VERNON MANORAJ XAVIER

FIRST APPLICANT

ROMESH ANTHONY XAVIER

SECOND APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: NORTH J

DATE: 7 NOVEMBER 2001

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 Before the Court is an application for review of a decision of the Refugee Review Tribunal (the Tribunal). That decision was made on 9 January 2001 and it affirmed the decision of the delegate of the respondent, the Minister for Immigration and Multicultural Affairs, not to grant protection visas to the male applicant, his wife and two children. The Tribunal dismissed the application of the wife and female child on the basis that they had returned to Sri Lanka and, therefore, could not qualify for the grant of a protection visa. In relation to the husband and son, who remained in Australia, the application was rejected on the merits. 2 For convenience in these reasons, the husband will be referred to as "the applicant". He arrived in Australia on 13 May 2000. He made a number of claims of persecution by reason of his Tamil ethnicity, which are set out by the Tribunal under the heading "Claims and Evidence". The Tribunal divides this part of its reasons into the claims made, and information provided prior to the hearing and the evidence given at the hearing. The applicant gave evidence at the hearing but his son, then in his late teens, did not. 3 It is not necessary for me to set out the claims in detail, but, rather, for the sake of convenience, it is useful to sketch a general picture of the case put by the applicant. 4 At the time of the hearing the applicant was 46 years old and had resided in Colombo since 1965. He worked as a marine radio officer for many years, and between 1990 and 1995 managed a factory. In early 1998, he owned a business producing shrimps in Puttalan, which is about 80 kilometres from Colombo. The Tribunal recorded that the applicant and his family had left Sri Lanka and visited the United Kingdom in February-March 2000 and returned to Sri Lanka thereafter. Additionally, the family had made a number of trips to Asian cities in the several years beforehand. 5 The applicant's allegations of persecution by reason of his Tamil ethnicity commenced with a period in 1983. He married in 1982 and obtained a job in Colombo just before the ethnic riots erupted in 1983. He claimed that he was attacked in the course of those riots and that his wife was sexually assaulted. He also alleged that he was forced by the LTTE to pay a commission in relation to the sale of a house owned by his father in Jaffna. He complained that, as a Tamil residing in Colombo, he was subjected to numerous police checks. He claimed that the police came at all hours of the night, damaged property, assaulted members of the family and demanded money. 6 Mr Xavier was concerned about his son and the risk, as he saw it, that unless his son cooperated with the LTTE there would be repercussions to him. He also complained that after a bomb blast in Colombo, killing a Minister and his wife, the security forces came to his home early in the morning and checked the residence. 7 As I indicated earlier, after the initial application for a protection visa was made on 13 June 2000, the applicant's wife and daughter returned to Sri Lanka owing to the illness of Mrs Xavier's father. 8 The evidence given by the applicant at the hearing was essentially consistent with the material provided beforehand. It confirmed that he had lived in Colombo since about the 1970s and otherwise gave some greater detail about the events of alleged persecution. 9 I deal separately now with the allegations which are at the centre of the application for review. These concern the operation by the applicant of a business in Puttalan. In order to deal with this matter comprehensively, it is desirable to set out the evidence which the Tribunal referred to under the heading 'Claims and Evidence' on this matter. The Tribunal said at page 6: "The applicant set up a business in the Puttalan area, but was harassed because he was a Tamil. He paid money, and after a few months, the farm was attacked and he was severely beaten and his prawns stolen. He said police would not take a statement from him as he was a Tamil. He continued to pay these people who threatened him, and then he started getting threatening letters and visits from unknown people saying he should leave the farm and go back to Mannar. The LTTE then came to the farm and told him not to leave, as they would protect him. He was sandwiched between the two. He completed the harvest and gave the LTTE some money as he had no other option. The police then came to his farm and destroyed his equipment and said it was an LTTE hideout and closed the farm. It was then taken over by some Sinhalese people." 10 The Tribunal then recorded the evidence, essentially to the same effect, given by the applicant at page 9 as follows: "He said in Puttalan, where he had set up a prawn farm with a Sinhalese partner, he was again harassed by the local Muslims and Sinhalese. They would come at night and ask him for money. Other prawn farms were not subjected to this treatment. He was treated this way because he was Tamil. He did not report this matter to the police. He felt the police were involved with the gangsters in the area. He did not go to a more senior police official, as he thought this would lead to further trouble. The gang destroyed the farm, other people now operate it, including his Sinhalese partner. He claimed his partner had absconded with the money. He was asked why he did not pursue the matter through the courts, and he said that he could not take civil action as the land was leased and the machinery and plant was destroyed. The lease was held in the company name." 11 The Tribunal then set out a considerable volume of country information under the following headings: 'Treatment of Tamils in Colombo', 'Human Rights Safeguards', 'LTTE Actions', 'Detention on Return' and '1983 Riots'. The Tribunal then set out its 'Findings and Reasons'. It carefully dealt with each of the events relied upon by the applicants. For instance, it found that, although it accepted that the applicants were affected by the communal riots in 1983, those riots occurred 20 years ago and the chance of such an occurrence recurring was remote. 12 The Tribunal, then, dealt generally with the position of being a Tamil in a country engaged in an ethnic war and accepted that the applicant was distressed by his situation, but held that, "there has been extensive exaggeration in his claims". The Tribunal considered a number of examples of what it saw as such exaggeration. For instance, it found that the country information did not support the applicant's claims of regular and ongoing harassment because such treatment was, so the Tribunal found, limited to young male Tamils who had come recently from the north east of Sri Lanka and who had certain other characteristics, none of which the applicant had. 13 The Tribunal then determined in further support of the conclusion that the applicant's case had been exaggerated, that the applicant had not sought to complain to higher authorities about the frequency of the events which had occurred in the checks. This brief overview of the Tribunal's decision is not intended to be comprehensive, but is intended to give an idea of the general approach taken by the Tribunal to the applicant's case. 14 The Tribunal referred to the allegation of harassment by the LTTE and concluded that the practice of paying a tax to the LTTE did not amount to persecution in this case. As Puttalan is an area controlled by the government the Tribunal rejected the allegation that the LTTE had approached the applicant to provide him with protection in Puttalan,. The Tribunal observed that it was unlikely that the applicant had a well-founded fear of persecution in light of the fact that he had travelled to the United Kingdom in March 2000 and returned to Sri Lanka without making any claim for refugee status there. The Tribunal also noted that the fact that the applicant's wife and daughter had chosen to return to Sri Lanka indicated that such a fear did not exist. 15 In relation to the alleged persecution concerning the establishment of the prawn farm in Puttalan, the Tribunal said at page 28: The applicant has claimed that he was harassed when he set up a prawn farm in the Puttalan area. I have seen no information to suggest that Tamils are prevented from practising business in Puttalan, Colombo or elsewhere because of the attitude of Sinhalese to Tamil businesses. Given that I do not accept a number of the applicant's claims of harassment in other areas to be credible, I have some doubts about the authenticity of these claims also. Even if I were prepared to accept that the applicant might have had some harassment from local people in the Puttalan area and may have been suspicious of local police, I note that the applicant made no move to go to any more senior authority to complain of perceived police inaction or harassment by the locals. In any event, I find that there was no reason why the applicant needed to continue his business in the Puttalan area if he feared for his safety there given that he was based in Colombo and was able to relocate there." Then, at page 31, the Tribunal said: "I further consider that, if the applicant is concerned about the difficulty of operating a business in an area where there are LTTE incursions, and therefore some risk, that it is reasonable for him to relocate and obtain work elsewhere or to establish a business elsewhere. The applicant has lived and worked in Colombo for a substantial number of years." 16 Further, at page 32, the Tribunal, apparently dealing with a written submission by the applicant's adviser, said: "The adviser has also indicated that the applicant would not have employment if he returned to Colombo. This is in contrast to the applicant's claims at hearing that he had financial interests in a construction company. Further, the applicant is a professionally qualified person who has also pursued business interests, and could seek further employment if he chose. The applicant has indicated that his family were considered well to do. He clearly has financial resources and interests in Colombo. Indeed, it may well be that the applicant and his spouse are so well established financially at this stage in his life that he does not need to have full-time employment. He has a spouse who is clearly a successful business person, and he has a home and family in Colombo. I do not accept the adviser's claim therefore that the applicant has no reason to be in the capital." 17 The applicant, who was represented at this hearing by Mr Lancy of counsel, relied upon the grounds of review in s 476(1)(e) of the Migration Act 1958 (Cth). He alleged that the Tribunal fell into an error of law in the way it treated the question of the events concerning the applicant's prawn farm in the Puttalan area. Mr Lancy contended first, that the Tribunal had grossly understated the evidence of the events in Puttalan when it described them in the passage on page 28 as harassment. He contended that the evidence showed that the applicant had had his property destroyed, his livelihood taken away and had suffered intimidation by the police. To describe those events as harassment was, so it was contended, a mistake in characterisation. 18 I do not accept that the Tribunal fell into any error of law in so describing the events. The use of the word 'harassment' was a paraphrase of the evidence previously set out, in these reasons concerning the events in Puttalan. 19 Mr Lancy then went to the second sentence in the passage extracted from page 28 of the Tribunal's reasons and contended that the observation of the Tribunal that there was no information to suggest that Tamils are prevented from practising business in Puttalan, Colombo, or elsewhere because of the attitude of Sinhalese to Tamil businesses did not meet the point raised by the applicant. One can see that this sentence would not be accepted by the applicant because it suggests that there is no information of the prevention of Tamils doing business because of the attitude of Sinhalese to Tamils. In the end, for reasons expressed later, nothing turns in my view on the inclusion of this sentence in the Tribunal's decision. 20 Mr Lancy then turned to the third sentence, in which the Tribunal said that it had some doubts about the authenticity of the claims concerning Puttalan because of the general doubts that the Tribunal had about the applicant's claims in other areas. Mr Lancy contended that this sentence, while it expressed doubts, did not assert a conclusion in relation to the evidence. I agree that the Tribunal did not, in this sentence, proffer a conclusion about the events in Puttalan. However, in the following paragraph it went on to consider the case as if the applicant had made out a case of persecution in relation to the events at Puttalan. 21 In the next sentence, the Tribunal made an assumption that the persecution existed and noted that the applicant did not make any significant complaint in relation to police inaction. Again, there is a certain lack of point to this sentence, in that it does not support any later conclusion or finding of fact. It forms part of the exposure by the Tribunal of its reaction to the case put by the applicant. There is no basis for criticising the Tribunal for making an observation, even though that observation did not itself amount to a finding, nor did it apparently support any other finding of fact. 22 In the final sentence, however, the Tribunal did make a finding that the applicant could sustain his application for a protection visa, because in all the circumstances, he could 'relocate' to Colombo. In my view, the approach taken by the Tribunal to the question of the alleged difficulties of the applicant in conducting his business in Puttalan was to accept, for the purposes of argument, that those difficulties did amount to persecution, but to find that the applicant could avoid that persecution by basing himself in, or operating from, Colombo, as he had from the 1970s. 23 In other words, there is no basis for the argument that the Tribunal made an error of law in its characterisation or understanding of the concept of persecution. For the purpose of dealing with this aspect of the case, the Tribunal assumed that what occurred in Puttalan was persecution within the meaning of the Convention. The assumption did not, however, assist the applicant because the Tribunal found that he was able to conduct business or earn a living in other areas in Sri Lanka. Consequently, I am bound to reject the argument that the Tribunal erred in its approach to the question of persecution in relation to the applicant's business in Puttalan. 24 In the written contentions, the applicant took issue with the Tribunal's determination that the applicant could relocate in Colombo. This approach was but faintly pressed in the oral submission, and rightly so. The Tribunal explained, in the passages referred to earlier in these reasons, why it was reasonable for the applicant to conduct business or earn a living based in Colombo. In particular, the Tribunal rejected the applicant's case that he had suffered persecution as a Tamil in Colombo. The Tribunal then looked at the personal circumstances of the applicant and noted that he was middle-aged, that he had professional qualifications, and that he had pursued business interests throughout his life. It also noted that he had financial resources and interests in Colombo and that his family was well-established. Therefore, there was material before the Tribunal upon which it was able to base the decision that the applicant could operate in Colombo without persecution, and thereby provide any necessary financial resources for his and his family's existence. 25 It follows that the ground of review that the Tribunal erred in law in dealing with the relocation of the business in Puttalan cannot be sustained. The Tribunal made a decision on the facts, and it is not the role of the Court to interfere in the judgment of the Tribunal of the merits of the case in that respect. Consequently, the application of both father and son, which were treated as succeeding or failing together, must be dismissed. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.