NAJM v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 584

FEDERAL COURT OF AUSTRALIA

NAJM v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 584 MIGRATION – denial of procedural fairness – whether the RRT failed to consider whether the applicant had a well-founded fear of persecution because of imputed political opinion. Migration Act 1958 (Cth) s 91R(2) Judiciary Act 1903 (Cth) s 39B Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 Applicant NAKB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 534 J C Hathaway, The Law of Refugee Status, Butterworths, Canada, 1991 NAJM v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 132 of 2003 JACOBSON J 13 JUNE 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 132 of 2003

BETWEEN: NAJM

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: JACOBSON J

DATE OF ORDER: 13 JUNE 2003

WHERE MADE: SYDNEY

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

NEW SOUTH WALES DISTRICT REGISTRY N 132 of 2003

BETWEEN: NAJM

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: JACOBSON J

DATE: 13 JUNE 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT Introduction 1 This is an application for judicial review of a decision of the Refugee Review Tribunal ("the RRT") handed down on 22 January 2003 affirming a decision of a delegate of the Minister refusing to grant the applicant a protection visa. The delegate's decision was made on 20 November 2000 and an application for review by the RRT was filed on 15 December 2000. The Applicant's Claims 2 The applicant is a young man from Sri Lanka. He is a Sinhalese Buddhist who was born and educated in Colombo. He claimed to have a well-founded fear of persecution on the ground of imputed political opinion. This was said to be founded in particular upon his past association with Tamil youths who were suspected of having connections with the Liberation Tigers of Tamil Eelam ("the LTTE"). 3 The applicant also claims that he had come under pressure to join the Army, the police force or other security services and he relied on this as giving rise to a claim of persecution. 4 The applicant's claims were set out in a lengthy statement attached to his visa application. They were repeated in bullet point form in the RRT's reasons. 5 It is unnecessary to set out the applicant's claims in the detail referred to by the RRT. The essence of his claims was that he was perceived by the authorities as having links with the LTTE because he had associated with some young Tamils who were employed in his father's business. 6 The applicant claimed that as a result of this he had been detained and mistreated by the authorities including an occasion in 1995 when he returned from India. His evidence was that he had been starved, interrogated and assaulted by the police who wanted to know about his history and the reason for his travel to India. 7 The applicant's evidence of his assault upon his return from India included the following statement:- "As I couldn't take any more beating from the police I stayed in my cell till I was taken to the court. I felt that I could tell my grievances to the judge rather than to the police officers. Unfortunately the police officers never seemed to take me to the courts". 8 As to his claim that he had been pressured to join the services, the applicant said that his father had bribed police officers to release him from prison on his return from India and that they had released him on the condition that he should either "leave Sri Lanka for good or should join the army straight away". He also said that the police officers told him that if he did not join the army "soon" he would be taken to prison under the Emergency Regulations. The Decision of the RRT 9 The RRT accepted that the applicant's father ran a business in Colombo which employed Tamils as cheap labour. It also accepted that the applicant was sometimes in the company of the Tamil employees. 10 However, the RRT did not believe that the applicant's association with his father's Tamil employees in a predominantly work-related environment would have led to a perception by the Sri Lankan authorities that the applicant was a supporter of the LTTE. 11 The RRT did not accept as plausible the applicant's claim that on his return from India in 1995 he was detained and held for seven days or "mistreated". 12 The RRT found it beyond belief that if the applicant had been detained he would have been in any position to decide to stay in his cell until he was taken to court to avoid being beaten by the police. 13 The RRT member said that her disbelief of the applicant's evidence on this question was strengthened by other items of evidence which she regarded as contradictory and inconsistent. She also pointed to the applicant's ability to obtain a passport without difficulty in 1997. 14 The RRT's conclusion was as follows:- "I am not satisfied that the Applicant suffered persecution because of his imputed political opinions on his return to Sri Lanka from India in 1995 and I find these claims to be transparently fabricated. However, even if I am wrong in this, the aforementioned independent country information clearly indicates that both the Sri Lankan government and the LTTE are currently engaged in extensive negotiations aimed at achieving a peaceful and acceptable resolution to the years of violent hostilities between the two sides, and therefore, even in the unlikely event that the Applicant had been suspected of having LTTE sympathies at the time he left Sri Lanka in 1997, he would be of no interest to the authorities now." 15 Finally, the RRT accepted that the applicant had left Sri Lanka because he did not want to join the army, the Special Task Force ("the STF") or the police force but it did not accept that his fears in this regard amounted to persecution within s 91R of the Migration Act 1958 (Cth) ("the Act"). The RRT's reasoning on this issue was as follows:- "… the Tribunal has no evidence before it which indicates that a formalised or legally-based conscription policy currently operates in Sri Lanka, and I am not satisfied that mere social, peer, or family pressure to enlist in one of the services amounts to serious harm such as would bring it within the meaning of persecution as defined in s 91R of the Act." The Application for Review 16 The application seeks to invoke the jurisdiction of the Court under s 39B(1) of the Judiciary Act 1903 (Cth). No grounds are specified in the application but it was supported by an affidavit filed by the applicant's then solicitor. 17 The affidavit recognises the need to establish jurisdictional error because it contends that the RRT "exceeded its jurisdiction" and "constructively failed to exercise its jurisdiction." However, the nature of the alleged errors is not identified in the affidavit 18 The applicant appeared before me in person apparently because he was unable to afford legal representation. 19 Nevertheless, the applicant identified what he said were three errors. First, he pointed to the evidence in his statement of threats made to him on his release from prison in 1995 that he must join the army. He said that these threats amounted to "serious harm" and that they were sufficient to give rise to persecution within s 91R of the Act. 20 Second, the applicant submitted that the peace negotiations between the Sri Lankan Government and the LTTE would not be successful. He pointed to the failure of the previous negotiations and said that the RRT had therefore failed to properly consider the likelihood that he would be persecuted in the future if he returned to Sri Lanka. 21 Third, the applicant said that the RRT member did not understand the situation in Sri Lanka and had not dealt properly with his claims. Decision 22 A person is not a refugee if his or her only reason for refusal to perform military service is dislike of military life or fear of combat. However, that person may be able to establish refugee status if his or her evasion of military service is grounded on a Convention reason. Thus, for example, refugee status may possibly be established if a country's conscription laws are applied in a discriminatory fashion; see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [54] – [55] per Gaudron J; J C Hathaway, The Law of Refugee Status, Butterworths, Canada, 1991 at p 179. 23 In the present case, there was no question of persecution in this sense because there was nothing to suggest that the applicant refused to serve in the army or the police on a Convention ground. There was no indication of any discriminatory application of the law by the Sri Lankan Government. Nor was it suggested that the applicant refused to serve in the army or the police based on his political beliefs. 24 The substance of the applicant's submission was that threats had been made against him that he must join the army, the STF, the police or other services and that the position in Sri Lanka, unlike Australia, was that failure to comply with such threats would result in violence. 25 Whether or not this is correct, the submission that the evidence of past threats amounted to persecution must fail for the reason that the applicant did not suggest in his evidence to the RRT that the threats of conscription were linked to any Convention ground. 26 Moreover, the RRT impliedly rejected the applicant's evidence that he had been threatened with the choice of leaving Sri Lanka or facing conscription. The threats were said to have been made when the applicant's father bribed police officers to release the applicant from prison in 1995. But the RRT rejected the claim that the applicant had been detained for seven days or mistreated. 27 Thus, no question arises as to whether any physical threat was made to the applicant which would constitute "serious harm" within s 91R(2) of the Act. 28 Furthermore, there was nothing put to me to suggest that the RRT was in error in finding that the evidence established no more than mere social, peer or family pressure to enlist rather than a formalised or legally based conscription policy. 29 The applicant's submission that the RRT failed to take into account the likelihood that peace negotiations would fail must also be rejected. The principal reason for this is that it involves an attack on the factual findings of the RRT. 30 However, this does not dispose of the applicant's submission because the RRT proceeded upon the basis that the existence of peace negotiations provided a partial answer to the matter if the RRT was wrong in its finding that the claimed events did not occur. 31 In Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 241 ("Rajalingam"), Sackville J said:- "In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT's own reasons. If a fair reading of the reasons as a whole shows that the RRT itself had "no real doubt" (to use the language in Guo claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong. Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT's own findings to be pursued. A "fair reading" of the reasons incorporates the principle that the RRT's reasons should receive a "beneficial construction" and should not be "construed minutely and finely with an eye keenly attuned to the perception of error": Wu Shan Liang at 271-272, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT's failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution." 32 This approach was applied recently by Tamberlin J in Applicant NAKB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 534. There, his Honour found at [13] that the RRT's conclusion was expressed in language which was charged with strong indications of doubt which were sufficient to require the RRT to take into account the possibility that the alleged events might have occurred. 33 Here, it seems to me, that the passage which I have set out at [14] indicates that the RRT had no real doubt. The RRT's finding that the applicant's claims were "transparently fabricated" leaves no room for any suggestion that the RRT had reservations about its findings. 34 Accordingly, in my opinion, the RRT was not required to consider the possibility that its findings may have been wrong. 35 It is true, of course, that it did so, but it seems to me that a fair reading of the passage indicates that the RRT considered this question out of an abundance of caution. 36 In any event, even if the RRT was obliged to have regard to the alternative approach stated in Rajalingam, I do not consider that it failed to take into account that the alleged events might have occurred. 37 This is because the RRT stated the applicant would not be of interest to the authorities having regard firstly to the previous negotiations and, secondly, having regard to the possibility that he may have been suspected of having LTTE sympathies in 1997, some five years prior to the RRT's decision. 38 It seems to me that the reference to the second possibility indicates that the RRT did take into account the possibility that the alleged events might have occurred notwithstanding that the RRT had no real doubt about the finding which it made that the events did not occur as alleged. The RRT's reasoning process was simply that, even if the events did occur, more than five years had elapsed and they were no longer relevant to the question whether the applicant had a well founded fear of persecution. 39 The third and final ground raised by the applicant, namely his contention that the RRT member did not understand the situation in Sri Lanka, also involves an attack on the RRT's factual findings. Accordingly, I reject this submission for the same reasons as I rejected the applicant's second contention, namely that it does not raise any question of error of law. Orders 40 The orders which I propose to make are that the application be dismissed with costs. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.