FEDERAL COURT OF AUSTRALIA Joseph v Minister for Immigration & Multicultural Affairs [2002] FCA 683 MIGRATION - protection visa - understatement of effect of applicant's evidence – whether reviewable error – whether tribunal failed to deal with issue of persecution by reason of applicant's absence from Sri Lanka – statement of tribunal that it was not convinced of truth of applicant's evidence of her arrest and detention – whether tribunal imposed an onus of proof on applicant – whether tribunal applied "real chance" test – whether tribunal misunderstood meaning of "persecution" – whether Convention reason a necessary element of persecution Migration Act 1958 (Cth) ss 5(1), 36, 476(1) Yusuf v Minister for Immigration & Multicultural Affairs [2001] HCA 30 (2001) 180 ALR 1 referred to Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719 (1999) 93 FCR 220 considered Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 referred to Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 referred to ROSHANI MANJULA JOSEPH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V 874 of 2001 GRAY J 30 MAY 2002 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 874 of 2001 BETWEEN: ROSHANI MANJULA JOSEPH APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: GRAY J DATE OF ORDER: 30 MAY 2002 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the proceeding. 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 874 of 2001 BETWEEN: ROSHANI MANJULA JOSEPH APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: GRAY J DATE: 30 MAY 2002 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 This is an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"), affirming a decision of a delegate of the respondent, the Minister for Immigration and Multicultural Affairs ("the Minister"). The delegate refused to grant to the applicant a protection visa. Section 36 of the Migration Act 1958 (Cth) ("the Migration Act") provides for a class of visas, known as protection visas. A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The term "Refugees Convention" is defined in s 5(1) of the Migration Act to mean the Convention relating to the Status of Refugees done at Geneva on 28 July 1951. The term "Refugees Protocol" is similarly defined to mean the Protocol relating to the Status of Refugees done at New York on 31 January 1967. It is convenient to refer to the combined effect of these instruments as the "Convention". For present purposes, the effect of the Convention is that Australia has protection obligations to a person who: "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country". 2 The applicant is a citizen of Sri Lanka of Tamil ethnic background. She arrived in Australia on 22 September 1996. On 10 April 1997, she applied for a protection visa. On 10 September 1997, a delegate of the Minister made a decision refusing to grant a protection visa. The applicant applied to the Tribunal for review of this decision. The Tribunal conducted a hearing on 30 October 2000. On 11 July 2001, the Tribunal published its decision and its reasons for decision. Its decision was to affirm the decision of the delegate of the Minister to refuse to grant a protection visa. In this proceeding, the appellant has sought judicial review of the Tribunal's decision. Because of the history of the matter, the application is required to be dealt with under the Migration Act as it stood before amendments that came into operation on 2 October 2001. The applicant's claims 3 The applicant claims to have a well-founded fear of arrest, detention, physical ill-treatment and even death if she should return to Sri Lanka. She claims that she would be persecuted because she is of the Tamil race and because the Sri Lankan authorities have imputed, and will impute, to her a particular political opinion, namely support for the Liberation Tigers of Tamil Eelam ("the LTTE"). Tamils are a significant minority of the population of Sri Lanka. The LTTE has been engaged for many years in an armed struggle against the government and the Sinhalese racial majority, in an attempt to win a Tamil-controlled homeland within Sri Lanka. 4 The applicant was born in Colombo, although both her parents were born in Jaffna, an area now under the effective control of the LTTE. The family lost all their belongings and their property as a result of ethnic riots in Colombo in 1983. They went to Jaffna to start life again. The Sri Lankan Army came through the region where they lived and the family again suffered. The applicant's uncle was mutilated and beheaded. Her bedridden grandmother was assaulted and severely wounded and died from her injuries in the absence of adequate medical facilities. Subsequently, in order to prevent the applicant's brother being forced to join the LTTE, her father took him to Colombo. In 1988, the applicant's mother sent her to Colombo to complete her education. Thereafter, because of the situation in Jaffna, the applicant was forced to remain in Colombo. She worked for an airline company. 5 A person the applicant had known while they were both students renewed contact with her and ordered numerous tickets from her, which the applicant supplied in the course of her employment. She was told that the tickets were for members of the family of the former fellow student. It appears that the police suspected the applicant of involvement in some kind of improper scheme to procure airline tickets for Tamil people. 6 The applicant relied on four specific episodes, which she claimed had occurred in her life, as evidence that her fear of persecution was well-founded. 7 The first episode was when the police came to her house and arrested and detained her on suspicion of being an LTTE member or supporter. They interrogated her about her supply of airline tickets to the former fellow student and about a number of people attending the applicant's house in order to collect the tickets. The police refused to believe the applicant's account, but after she had been held for several hours, her brother arranged her release through a contact. 8 The second episode occurred after the detonation of a bomb at the Central Bank in Colombo in January 1996. The applicant was questioned, along with others who worked in the area. The following day, she was taken in for questioning and was asked about her prior arrest and the supply of airline tickets. On this occasion, she was harassed and threatened and was fearful that she might be assaulted physically or even killed. She was pressed with questions about involvement with the LTTE and contacts with the LTTE. She complained of a headache and asked for a Panadol, but was not given one. After about twenty-four hours, she was released on conditions. 9 The third episode was really a series of episodes, which began after a bomb was detonated at Dehiwela in July 1996. There were many roadblocks and people were stopped and questioned at them. Close attention was paid to Tamils and the applicant, as a Tamil, was subjected to more questioning than others when she was stopped at roadblocks on her way to work. On three occasions, the applicant was taken in for questioning. She was frequently detained and confronted by the police or the army when she was in the street or travelling by bus. 10 The fourth episode involved two occasions of arrest and detention. The applicant's brother was arrested and detained for two days and the applicant was also arrested. Her aunts paid bribes and charges against her brother were withdrawn. The applicant's home was then raided at various times of the day and night. The applicant and her brother were again arrested and both were kept in custody for two days. 11 The applicant became convinced that life was unsafe for her in Sri Lanka. Her parents made arrangements to send her to India, but an opportunity arose for her to travel to Australia and she did so. The Tribunal's reasons for decision 12 The Tribunal accepted the applicant's evidence about her family's situation in the 1980s and her return to Colombo to school in 1988. It accepted that she lived in Colombo from then until she came to Australia, finishing her secondary and vocational education and obtaining a position in the travel industry. It accepted that she was taken to the police station for questioning during 1995 and 1996 and that, like other residents of Colombo, was stopped at checkpoints from time to time and required to satisfy those staffing the checkpoints that she was a person who lived and worked in Colombo. 13 The Tribunal also accepted in substance the applicant's account of her questioning by the police in relation to the tickets issued at the request of the former fellow student. In particular, it accepted the applicant's evidence that she had acted honestly and according to correct procedures in issuing those tickets. Relying on independent information, the Tribunal found that the Sri Lankan authorities had undertaken many investigations into travel scams, document fraud and the involvement of the LTTE in people smuggling and airline threats. It found that, in such circumstances, it was not surprising that the police would question someone who had issued tickets through a particular person who was obtaining tickets for others. The Tribunal said: "The Tribunal finds that it is reasonable for the police to question the applicant in relation to her possible involvement in a ticketing scam. The apparent lack of follow up by the police with her employer and her relatively quick release from questioning attest to the police not believing that she was involved in illegal and/or political activity. In light of the ongoing security concerns of the police and the documented concerns about airline security and LTTE involvement in people smuggling, it is not surprising that any person, whether they are Tamil, Sinhalese or another race, would be questioned if they were thought to be linked to such activity. The Tribunal finds that the police questioning of the applicant in relation to her issue of multiple tickets at the request of a female acquaintance does not constitute persecution of the applicant." 14 With respect to the questioning of the applicant following the Central Bank bombing in early 1996, the Tribunal found that, given the huge numbers of people injured and killed in the bombing and the scale of the damage, it was not surprising that the authorities launched into a thorough and wide investigation to try and find the culprits. It found that there was a mass round-up of Tamils following the bombing and accepted as plausible that the applicant was one of those caught in the round-up and that the police would have looked at earlier records relating to their questioning of her over the ticket issue. It also accepted the applicant's claim that she was not treated courteously. It said: "The applicant's description of the police lack of responsiveness to her request for a headache tablet and her feelings of frustration at being questioned merely because she is Tamil ring true. In her submission to the Department, the applicant also described her fear of being physically assaulted or killed whilst being detained but in her oral evidence to the Tribunal indicated that she was pushed around rather than being subjected to any serious assault. The Tribunal finds that the applicant was released from questioning within a reasonable time frame given the circumstances in which she was questioned. The Tribunal finds that the questioning of the applicant by the police following the Central Bank bombing does not constitute persecution of the applicant." 15 The Tribunal then said: "The applicant's descriptions of her subsequent dealings with the police during her oral evidence were not as coherent or convincing as her earlier evidence. The applicant stated that she was questioned by police following the arrest of her brother who came to stay with her. Given the country information about registration requirements for those staying at a different address to their usual one, the Tribunal finds it plausible that the applicant might have been required to attend at the police station to verify her brother's identity and reasons for staying at her home as it was not his regular place of residence. The Tribunal is not, however, convinced that the applicant herself was detained for two days on that occasion nor that she was detained by the police on subsequent occasions prior to her trip to Australia." 16 Again acting on independent information, the Tribunal accepted that persons are regularly stopped at checkpoints, regardless of race, and that the longer and more frequent the distance travelled, the greater the likelihood of being stopped. Because the applicant travelled some distance to work by bus each day it was not surprising that she would have to pass through checkpoints. The Tribunal accepted that Tamils are far more likely to be questioned when everyone is pulled up at checkpoints and that young Tamil women like the applicant would find it unpleasant and frightening to have to face male police at checkpoints. It recited independent information indicating that Tamils who were born, or who live and work, in Colombo are less likely to be detained or questioned rigorously than persons from the north or east. It also mentioned reports suggesting that round-ups are now less frequent and usually follow a major terrorist incident. It said: "Given the circumstances of the applicant's questioning by the police and that the checkpoints impact on all residents of Colombo, the Tribunal is not satisfied that the police questioning of the applicant at the police station nor being required to identify herself at checkpoints constitute persecution of the applicant." 17 The Tribunal then dealt with a claim of the applicant that she had been required to report to the police station every two weeks and that the police had followed up her failure to attend after her departure for Australia. The Tribunal took the view that, as almost five years had elapsed since the applicant left, it was not satisfied that she would face any repercussions from her failure to continue to report to the police if she returned to Sri Lanka. It rejected her submission that the length of her absence and her application for a protection visa would result in her being singled out by the authorities. In doing so, it acted on independent information. 18 The Tribunal concluded its reasoning by saying: "Taking all of the applicant's claims into account, the Tribunal finds that the applicant does not have a well-founded fear of persecution because of her Tamil ethnicity, any imputed political opinion or for any other Convention reason." The grounds for judicial review 19 By her amended application, filed on 28 September 2001, the applicant relied on three of the grounds specified in s 476(1) of the Migration Act. Those grounds were: (b) (that the Tribunal did not have jurisdiction to make the decision); (c) (that the decision was not authorised by the Migration Act or the Migration Regulations); and (e) (that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal). Each of these grounds was particularised in the same terms. In substance, the applicant alleged that: (a) the Tribunal erred in not determining that the detention and questioning of the applicant, together with harassment and threats after the Central Bank bomb blast in early 1996, was persecution for reasons of race or political opinion within the meaning of the Convention; (b) the Tribunal erred when it said that it was "not convinced" that the applicant was detained as she alleged in what I have described as the fourth episode; (c) the Tribunal erred in not finding that the repeated detention and questioning, especially at checkpoints, of the applicant, and the Tamil people in general, amounted to persecution, or might amount to persecution in the reasonably foreseeable future; and (d) the Tribunal erred in failing to determine whether the length of absence of the applicant from Sri Lanka would give rise to well-founded fear of persecution for a Convention reason should she now return to Sri Lanka. The correctness of the Tribunal decision 20 It should be noted that the manner in which the grounds in the amended application were expressed borrowed heavily from the joint judgment of McHugh, Gummow and Hayne JJ in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 (2001) 180 ALR 1 at [74] – [75] and [82]. If the Tribunal made what can be described as a jurisdictional error in terms of that judgment, then the grounds on which the applicant relied can be made out. 21 In some respects, however, what the applicant sought to do was to seek to overturn the Tribunal's conclusions on matters of fact. Thus, the Tribunal's findings in relation to what happened to the applicant while she was being detained in the aftermath of the Central Bank bombing were challenged by reference to the transcript of the evidence that the applicant actually gave to the Tribunal. It is apparent that the Tribunal did understate the applicant's evidence in its finding that her evidence was that she was pushed around rather than being subjected to any serious assault. That is an error of fact and one that cannot be corrected on judicial review. In the same category is the applicant's attempt to question the Tribunal's rejection of her case based on her absence from Sri Lanka. Contrary to the argument put on behalf of the applicant, the Tribunal expressly rejected the applicant's contention on this point and its conclusion cannot be challenged on judicial review. 22 There are unsettling aspects of the Tribunal's reasons that give rise to the other grounds in the amended application. For the Tribunal to say it was "not … convinced" of the truth of the applicant's evidence that she was arrested and detained twice following the Dehiwela bombing might tend to suggest that the Tribunal had imposed an onus of proof on the applicant. The Tribunal's findings that the treatment of the applicant following the Central Bank bombing, and from time to time at checkpoints, did not amount to persecution might suggest that the Tribunal lacked a proper understanding of the meaning of the word "persecution". It is necessary, however, to keep in mind the true nature of the Tribunal's function. The Tribunal's task was to decide whether it was satisfied that any fear that the applicant had of being persecuted was well-founded. The question for the Tribunal was whether there was a real chance that the applicant would suffer persecution if she were to return to Sri Lanka. To a large extent, this question is normally answered by reference to what has happened to a person in the past. The Tribunal does not have to make specific findings of fact in relation to past events. Rather, it must take into account the material the applicant places before it, along with any other material to which it has access for the purposes of a particular application, in looking to the future. Even if the Tribunal may not be convinced that a person is telling the truth, it must nevertheless have regard to that person's account of past events in considering the future. See Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719 (1999) 93 FCR 220 at [62] per Sackville J, with whom North J agreed, and [137] per Kenny J. 23 Early in its reasons for decision, the Tribunal set out the task it had to perform, as it saw that task. To a considerable extent, what it set out was in standard paragraphs found in the reasons for decision of the Tribunal in most, if not all, cases. As to what constitutes persecution, the Tribunal made reference to passages from Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. It referred to the judgment of Mason CJ at 388, where his Honour said that the notion of a well-founded fear of being persecuted, to which the Convention refers, necessarily contemplates that there is a real chance that a person will suffer "some serious punishment or penalty or some significant detriment or disadvantage". It also referred to the judgment of McHugh J at 429 – 431, where his Honour said that the notion of persecution involves selective harassment, and that in appropriate cases it may include single acts of oppression, serious violations of human rights and measures "in disregard" of human dignity. The Tribunal also referred to Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 for the notion that discrimination against a person for one of the Convention reasons is a requirement of persecution. 24 Although these references were in standard form, there is nothing to indicate that the Tribunal did not apply them in its reasoning. When it said that the treatment of the applicant following the Central Bank bombing, and subsequently at checkpoints, was not persecution, it was saying that the applicant had not been singled out for this treatment for any Convention reason, particularly for those advanced by the applicant. Although the treatment of the applicant might have been sufficient to amount to persecution, in the Tribunal's view it lacked the necessary element of a Convention reason. Because of this, the Tribunal concluded that it did not amount to persecution. 25 Further, in the early remarks in its reasons for decision, the Tribunal referred to the "real chance" test. It recognised that a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent. The Tribunal's reference to not being "convinced" that the applicant had been arrested and detained on two occasions must be seen in this context. It does not indicate that the Tribunal had failed to apply the "real chance" test as to what might happen in the future. All it indicates is that the Tribunal discounted the applicant's story as to what had happened to her in the past. To this extent, the Tribunal found the applicant's story less weighty than if it had been convinced of the truth of that story. Conclusion 26 The applicant has therefore failed to make out any ground for overturning the Tribunal's decision. The application must be dismissed. The applicant must be ordered to pay the Minister's costs of the application. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray. Associate: Dated: 30 May 2002 Counsel for the Applicant: Mr R Lancy Solicitor for the Applicant: Wimal and Associates Counsel for the Respondent: Mr E Heerey Solicitor for the Respondent: Clayton Utz Date of Hearing: 14 February 2002 Date of Judgment: 30 May 2002