Selvadurai v Minister for Immigration & Multicultural Affairs [2002] FCA 342

FEDERAL COURT OF AUSTRALIA

Selvadurai v Minister for Immigration & Multicultural Affairs [2002] FCA 342

JOHN VERNON PREMAKUMAR SELVADURAI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V 983 OF 2001 NORTH J 8 FEBRUARY 2002 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 983 OF 2001

BETWEEN: JOHN VERNON PREMAKUMAR SELVADURAI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: NORTH J

DATE OF ORDER: 8 FEBRUARY 2002

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. Leave to amend the application is refused. 2. The application is dismissed. 3. The applicant 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 983 OF 2001

BETWEEN: JOHN VERNON PREMAKUMAR SELVADURAI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: NORTH J

DATE: 8 FEBRUARY 2002

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The applicant, Mr John Selvadurai, is a citizen of Sri Lanka. He arrived in Australia on 9 June 1999. On 22 July 1999 he lodged an application for a protection visa. On 11 January 2000 a delegate of the respondent, the Minister for Immigration and Multicultural Affairs, refused to grant him that visa. On 21 January 2000 he applied for a review of that decision. On 18 July 2001 the Refugee Review Tribunal (the Tribunal) affirmed the decision of the delegate not to grant Mr Selvadurai a protection visa. 2 Given the way that the matter was argued on behalf of the applicant, it is not necessary to set out at length the facts and reasoning of the Tribunal. What follows is a very short summary of the "Claims and Evidence" set out in the reasons for decision of the Tribunal. 3 The applicant is about 40 years old and of Tamil ethnicity. His parents are from Jaffna but he was born in Colombo. He was educated in Colombo and worked there, save for a relatively short period of employment in the Middle East. He was employed in a travel agency, initially as a ticketing reservation trainee and ultimately as a manager of Finlays Travel in Sri Lanka. From 1991 he was employed as a sales manager, and from 1995, as general manager. 4 The central incident upon which he relied to found his claim for a protection visa concerned the issue of travel vouchers to a group of people who apparently intended to travel on Cathay Pacific to Canada. These travel vouchers were issued on 23 May 1999. It transpired that the visas of these passengers were forgeries. The passengers were prevented from boarding the flight and handed over to the authorities. 5 Mr Selvadurai claims that the authorities suspected that the group had connections with the Liberation Tigers of Tamil Eelam (LTTE) and were trying to leave the country to raise funds for the LTTE. He said that, when the police discovered that Mr Selvadurai had issued the tickets, they suspected from his Tamil ethnicity that he was a supporter of, and involved with, the LTTE. He claims that he was taken into custody on 28 May 1999 and beaten. He claims that it was alleged by the police that he issued the travel vouchers, knowingly turning a blind eye to the fact that the passengers' visas were forged. 6 Mr Selvadurai told the police that he was innocent of any accusations. He was released after two days on condition that he report in a week's time with details of the person who originally approached him for the tickets, and details of other LTTE members and their locations in Colombo. 7 There were a number of other claims made by Mr Selvadurai but, as they formed no part of the argument on the appeal, it is unnecessary for me to outline them further. 8 The claim made by Mr Selvadurai based on these facts was that he had a well‑founded fear of persecution on the ground of an imputed political opinion, namely, that the authorities would regard him as a supporter of the LTTE and persecute him in the future as a consequence. 9 The Tribunal dealt with this aspect of the appellant's claim in the following way: "The applicant was a long standing employee of a travel company in Colombo. His claim relates to him issuing vouchers to people who unbeknown to him had false visas. It is possible that this occurred. It is also possible that the applicant's job was not to check the visas. However in the Tribunal's view, if the applicant's evidence is correct, it would have only taken a minimal amount of inquiries to ascertain that the applicant had no involvement in the production of false visas. Whilst it is possible that the applicant was questioned and that he was mistreated at that time, the Tribunal considers that this incident is an isolated one. He has not previously come to the attention of the authorities. He is not from the north or east, having been born in Colombo and having been a long standing employee in a travel company. There is no suggestion that he supports the LTTE. As a result the Tribunal firstly is not satisfied that, even if the applicant was questioned after the false visas were discovered, the authorities would impute to him a profile of support for the LTTE. Secondly the Tribunal concludes from the isolated nature of this incident and the applicant's many years without problems, that there is no chance he will face any problems should he now return to Sri Lanka. The Tribunal concludes that there is no real chance he will face problems because of any imputed LTTE profile because it does not accept he was considered to have such a profile in the past." 10 Then, the Tribunal proceed to deal with other matters. The original application for review included a ground that the Tribunal decision involved an error of law under s 476(1)(e) of the Migration Act 1958 (Cth) (the Act), and also, a ground that the Tribunal had asked itself a wrong question within the principles enunciated in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30. However, it was conceded, and properly so, by Mr Carew of counsel, who appeared on behalf of the applicant, that the original application did not articulate the grounds which he sought to argue at the hearing. Consequently, he sought leave to amend the application by substituting the grounds in the initial application with the following two paragraphs: "(1) The applicant says the decision involved an error of law being an incorrect interpretation of the applicable law, contrary to section 476(1)(e) of the act. Particulars in the decision The Tribunal stated that, 'There is no suggestion that he (the applicant) supports the LTTE.' On the basis of that statement in part, the Tribunal concludes that the applicant does not have a well‑founded fear of persecution on the basis of imputed political activity. The applicant asserts that the relevant test for determining the existence of a well‑founded fear was not properly applied. That is because in ascertaining whether the ground of imputed political activity existed, the Tribunal focused in part on the existence of past actual political activity. (2) Further, the applicant says that the Tribunal asked a wrong question (involving an error of law) in asking whether there had been past actual political activity when the applicant's claim was on the ground of imputed political activity. Particulars The applicant refers to the particulars delineated under paragraph (1)." 11 In explaining the arguments in oral submissions, Mr Carew focused on the sentence referred to in the particulars, namely: "There is no suggestion that the applicant supports the LTTE." 12 He sought to contend that this sentence amounted to a finding by the Tribunal that the applicant had been unaware, when issuing the travel vouchers, that the visas were forgeries. Mr Carew suggested that the focus of the Tribunal's fact finding at this point was directed to the question whether the applicant had actually engaged in political activity in support of the LTTE. He contended that this was an error of law. He submitted that the Tribunal was bound, in a case concerning persecution by reason of an imputed political opinion, to determine whether the applicant had in the past been imputed with support of the LTTE, rather than whether he had actually supported the LTTE. 13 The vice in the argument is that it misapprehends the reasoning of the Tribunal. The Tribunal concludes this part of its reasoning shortly after the sentence in contention by saying: "The Tribunal concludes that there is no real chance that he will face problems because of any imputed LTTE profile because it does not accept that he was considered to have such a profile in the past." 14 The Tribunal had earlier in the paragraph listed a series of reasons why it was not persuaded that the applicant had been imputed with the political opinion alleged. Those reasons included the fact that the incident about which complaint was made was an isolated incident. That militated against the applicant being seen by the authorities as a supporter of the LTTE. Similarly, the Tribunal observed that the applicant had not previously come to the attention of the authorities. Further, he was not from the north or the east – areas from where supporters of the LTTE might generally be expected by the authorities to come – and his history was of birth, residence and a long period of employment in a travel company in Colombo. 15 In the context of those reasons, the Tribunal said that there is no suggestion that the applicant supports the LTTE. That sentence should not be taken on its own, but rather in the context of a line of reasoning which was examining whether the applicant had, in the past, been imputed with a political opinion supportive of the LTTE. 16 Even if the passage were to be seen as focusing on whether the applicant in fact engaged in political activity in support of the LTTE, such a focus would not demonstrate any error of law. It was open to the Tribunal to examine whether a person was politically active in the past in order to determine whether it is likely that he would be imputed with the same political opinions which motivated his past activity in the future. 17 In my view, the grounds raised in the proposed amendment could not succeed and it is consequently appropriate that the application for amendment be rejected. As there were no other arguments put in support of the original grounds, the order of the Court will be that the application is dismissed. In light of the firm view that I formed as to the inability of the proposed arguments to succeed, I did not call upon counsel for the Minister to respond to the arguments put by the applicant. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.