VBAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 205

FEDERAL COURT OF AUSTRALIA

VBAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 205 Applicant VBAC of 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V 74 of 2002 RYAN J 17 MARCH 2003 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 74 of 2002

BETWEEN: Applicant VBAC of 2002

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

JUDGE: RYAN J

DATE OF ORDER: 17 MARCH 2003

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicants pay the respondent's costs, such costs to be taxed in default of agreement. 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 74 of 2002

BETWEEN: Applicant VBAC of 2002

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

JUDGE: RYAN J

DATE: 17 MARCH 2003

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 This is an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") affirming a refusal by a delegate of the respondent Minister to grant the applicants protection visas. I note that a previous decision of the Tribunal in this matter was set aside by a Full Court of this Court on 17 May 2001 and remitted to the Tribunal for determination according to law. The first and second applicants are husband and wife and the third applicant is their 7 year-old daughter, who was born in Australia in 1995. The first applicant ("the applicant") is now aged 32 and was born in Madige in Sri Lanka. 2 The applicant claims to have a well-founded fear of persecution from either the Tamil Tiger movement ("the LTTE") or the army if he were returned to Sri Lanka. In essence, he claims that the persecution he fears would result from his having been involved in actions in Kattankudy to defend villages from LTTE incursion in August 1989, which actions resulted in the death of a number of LTTE leaders, although the applicant was not directly responsible for the death of any LTTE member. He also claims to have suffered one harassing visit from armed LTTE members in 1995 when living in Colombo, Sri Lanka. That visit, the applicant contends, flowed from his fund raising activities at his mosque in Colombo. The applicant claims, in addition, that the army in Sri Lanka may have gained the impression that LTTE members had visited him in Colombo because he was a LTTE member, thus putting him at risk of persecution from the army by reason of his imputed membership of a violent political organisation. 3 The Tribunal in its reasons recited the following information given by the applicant in his protection visa application: 'Why did you leave that country?' "I left Sri Lanka because I was threatened by the LTTE Tamil Tigers, for being an active member in a social group known as the JIHADH[this is the applicant's spelling of this word and the Tribunal will use this spelling throughout]. I feared for my life and my wife's life and for the life of my unborn child, as my wife was at that time three months pregnant. As I was living in Colombo although I am from Kattankudy (eastern Sri Lanka) three members from the LTTE came to my place on the 26th of January 1995 and harassed me and my wife if I didn't give up my active role in JIHADH. Further more they told us if we complained to the police about their visit or if we tried to identify them we wouldn't be living long. As our social group was powerless I didn't have any choice but to leave the country." 'What do You (sic) fear may happen to You (sic) if you go back to that country?' "I fear if I go back our lives will be in danger since the government has no control over the LTTE terrorists, even in the government controlled areas ‑ I understand that even after I came to Australia they have tried their best to get my address in Australia so that they could harass me. As far as I am concerned my family is the most important asset to me and I can't afford to risk it's safety in any way as they have done nothing wrong and they don't have to live in fear for the rest of their fives. I am very positive that the government cannot offer me any security since I am just an ordinary citizen in their point of view. However the government of Sri Lanka will not give any priority for our security because at one stage our movement(JIHADH) took to arms and were defending the Muslim villages in the eastern part of Sri Lanka. So if we go back our lives will be in danger since there is nobody to protect us." 'Who do you think may harm/mistreat you if you go back?' "The LTTE will mistreat/harm me because I have being actively involved in the JIHADH movement in the eastern part of Sri Lanka in order to protect the Muslim villages from the LTTE attacks. In order to protect the Muslims I have been involved in a few killings of some leading LTTE members. So I feel that they will take revenge from me since they have the vengeance against me. Since the government of Sri Lanka cannot provide protection even in the government controlled areas my life will be in danger, furthermore our group(JIAHDH) is powerless at the time being so that they cannot protect me from the LTTE Tamil Tigers." 'Why do you think they will harm/mistreat you if you go back?' "I feel that the LTTE Tamil Tigers will mistreat/harm me because I have been a very active member, of the JIAHDH movement which operated successfully in the eastern part of Sri Lanka and we were protecting the Muslim villages and we were involved in a few killings of the LTTE members in order to protect our Muslim families. As I was involved in these operations and had killed the LTTE members they will definitely take revenge from me or my family since they still have the vengeance against me. If our movement (JIHADH) was powerful/operating I could get protection from them since it's powerless now. Our lives will be in danger if we go back as the Sri Lankan government would not protect us.' 'Do you think the authorities of that country can and will protect you it you go back? If not, why not?' "As I had a good job and a very good lifestyle before I came to Australia I always wanted to go back to Sri Lanka that was the reason why I didn't apply for refugee status as soon as I came to Australia thinking that the government would solve the ethnic problem but it seems like that this civil war is never going to stop according to the recent news footages, furthermore if I go back at this juncture My life will be in danger since the government cannot provide any protection even in the government controlled areas. As we see in the news the capital of Sri Lanka Colombo is still being attacked by the LTTE Tamil Tigers and the safety of the people cannot be guaranteed at any time. The authorities of Sri Lanka are not in a position to provide me security, as we can see there have been attacks even in the government controlled areas by the LTTE. And the other reason why the government wouldn't protect me is because I have been involved in protecting the Muslim villages without the approval of the Sri Lankan government." 4 The Tribunal summarised as follows the further evidence given as part of the applicant's case during the hearing: 'At the hearing the applicant reiterated the above claims, provided some further clarification of some of them and in addition he claimed that he was raising money for Muslims in the East of Sri Lanka. He further claimed that on the evening of 26 January 1995 three people forced themselves into his house in Colombo with a revolver and told him to give up raising funds and giving them to the Muslims. He stated that these were LTTErs and that they found him in Colombo through LTTE intelligence. When asked how the money was raised he stated that it was done at the mosque. When the applicant was asked why he had not mentioned this claim before, he replied that this was the first chance he had had to speak about his claims. The applicant also stated, in response to Tribunal questions, that he had taken one and a half years to apply for a Protection Visa (PV) because he thought the problems in Sri Lanka would be solved. The applicant's wife also gave evidence that three people had come to their house in 1995 and they had spoken in Tamil to her husband and told him to stop collecting money. The applicant's wife stated that she herself speaks Sinhalese and was born in Colombo. The Tribunal, pursuant to s.424A of the Act, asked the applicant to comment in writing on the discrepancies between his original claims and those he made at the hearing. On the question of his additional claim regarding fundraising for Muslims, he stated that this was not an additional claim. He stated that collections in support of the Muslims were taken at mosques in Colombo and it was not something he organised or operated at the mosque. He contributed and encouraged others to contribute because he had relatives living in the eastern province where the money was going. He stated that the LTTE gathered intelligence in the mosque and identified him from his connections with the Jihad in Kattankudy -- the latter is itself a new claim. On the issue of his having killed LTTEers, the applicant reiterated what he had said at the hearing; that he participated physically in an attack but that he personally did not kill anyone but rejoiced in the success of the group's action.' 5 The Tribunal summarised its findings as follows: 'The applicant is … of Sinhalese ethnicity and Muslim faith. He travelled to Australia on a three month visitor visa issued in Colombo on 15 March 1995. The essence of his claims is that he fears persecution by the LTTE (Liberation Tigers of Tamil Eelam) because he was part of a movement called Jhihad in eastern Sri Lanka and because he collected money in Colombo to send to Muslims in the east … … it is for both these issues that he fears a return to Sri Lanka. Activities in the Jhihad. The initial reading of the applicant's claims would have led to the conclusion that the applicant actually was responsible for killing members of the LTTE in August 1989. This was put to the applicant at the hearing and he distanced himself from the actual act of killing as this would have given rise to considerations under Article 1F of the Convention. The information he provided and the manner in which he described his activities in trying to "protect" the villagers under threat by the LTTE, apart from the fact that he was 15 at the time, was not convincing. Further he claimed that the members of this organisation called Jhihad were not armed and that the incident he described was the only incident he ever participated in. Independent information about the Jhihad movement (CX29030) dated 6 April 1998 states inter alia: The 'Jihad movement' […] does not exist in any concrete, organised form. From time to time calls for militancy by Muslim youth in the eastern province have been made, particularly after the massacres of Muslim communities by the Liberation Tigers of Tamil Eelam (LTTE), which took place between 1990 and 1993. … … During the time of the Indian Peace Keeping Force (1987-1990) armed Muslims calling themselves 'Jihad' occasionally surfaced. Some SLMC youth began to talk about forming into an organisation, which would be militant, not ideological. The group never materialised. … … Rumours of Muslim militancy have never been substantiated. Informed contacts routinely monitor security in the east, and told us they had looked into the claims made in [a] Ddivayina' article and found no evidence of any activity by an organisation calling itself the 'Islam Peoples Revolutionary Liberation Organisation'. They said there is no evidence of any fresh activity amongst the Muslim community of a militant nature. … … At the same time [1992], the SLMC leader announced that Muslims were waiting for the go-ahead from the Jamiathul Ulama, the highest body of Muslim theologians in the country, to declare Jihad on the LTTE. It never did so. In response to the SLMC leader, the leader of another Muslim party, the Sri Lanka Muslim Party (SLMP) said there was no such organisation called the 'Jihad' in the east. He said that if a 'Jihad' took place, it would be reactive, not an organised affair, nor would it have a political objective. He did not think the Mosque Federations would support a 'Jihad' in Sri Lanka. By 1993, the LTTE stopped its wholesale massacres of Muslim villagers, but continued to murder individual Muslims in a random way in the east until late 1993. Since then, these incidents have ceased. … … There are a number of Muslim groups organising in the eastern province which have religious overtones. Their objective is to make the Sri Lankan Muslim community more conservative; to "purify" Sri Lankan Muslims. We understand that these groups receive funds from Arab countries, and there are various moves to develop to strengthen the different branches of Islam amongst the Sri Lankan Muslims. According to our Muslim contacts there is no involvement of mosques in any Muslim militancy. This information indicates that the LTTE killings of Muslims occurred in 1992/3 and that the Jihad was not an organised movement but a group which came together to respond to some events. It did not exist at the time of the above report. The Tribunal accepts that the applicant may have participated as a youth in a spontaneous reaction to some event against the LTTE but does not accept that there is any interest in him as claimed, not only did he leave the east of Sri Lanka soon after the incident but he has not taken part in any activity which could be remotely construed as anti LTTE since that time. More than ten years have elapsed. The Tribunal thus finds that there is not a real chance that the applicant would be persecuted for taking part in one anti LTTE activity in his youth, an activity where the importance of his role was at best peripheral. The Tribunal notes that there is no discernible organised group of the kind to which the applicant claims to have belonged.' 6 On the issue of the applicant's involvement in fundraising activities the Tribunal found: 'The applicant's claims regarding these activities were made only at the Tribunal hearing. The Tribunal notes that the applicant, in response to the s.424A letter from the Tribunal, stated that this was not a new claim. There is no evidence on any file in the Tribunal's possession that this claim was ever made, in any event, initially it appeared that the applicant was trying to make the point that the LTTE was concerned with his fund raising activities and went to stand over him at his house on 26 January 1995, yet the applicant has described his fundraising activities as innocuous and his role in it as peripheral, only encouraging people to donate. The applicant has then further claimed that his connection with the Jhihad was something which arose out of his fundraising activities. The applicant has not advanced any arguments as to the reason the LTTE would target him for encouraging people to donate money, in a mosque, which would appear to be a normal collection for charity, practised in a place of worship not only by Muslims but by many other religions. The late presentation of these claims, the contradictions therein and the implausibility of the motivation for his being sought out, lead the Tribunal to consider that these claims are an embellishment and the Tribunal does not accept them.' 7 The Tribunal expressed its final conclusions in these terms: 'Given the above discussion the Tribunal finds that the applicant does not have a well-founded fear of persecution for the Convention reason of political opinion and any other Convention reason, now or in the reasonably foreseeable future, should he return to Sri Lanka. … Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa. No specific Convention claims were made by or on behalf of the applicant's wife and child, and there is no basis on which the Tribunal can be satisfied that they are refugees. The fate of their application therefore depends on the outcome of the applicant's application. As the Tribunal has found that the applicant does not satisfy the criteria for a protection visa, it follows that his wife and child cannot be granted a protection visa.' 8 Two principal issues of fact were agitated at the hearing by Mr Krohn of Counsel for the applicant and Mr Mosley of Counsel for the respondent. Broadly, these issues were the significance of the applicant's participation in fund-raising activities at the mosque in Colombo and his role in the killing of LTTE members in Kattankudy in 1989, and whether his evidence as to his involvement in these matters had changed over time in a way that cast doubt upon his credibility.