Somaskandan v Minister for Immigration & Multicultural Affairs [1999] FCA 1459 (22 October 1999)

Last Updated: 27 October 1999

FEDERAL COURT OF AUSTRALIA

Somaskandan v Minister for Immigration & Multicultural Affairs

[1999] FCA 1459

IMMIGRATION - refugees - Refugee Review Tribunal - whether Tribunal obliged to make express finding on subjective fear of persecution - whether Tribunal had correctly applied the law to the facts - whether Tribunal had set out its findings on whether the applicant had a well founded fear of persecution - whether the Tribunal had adequately set out its reasons and adequately referred to the evidence or other material on which its findings of fact were based.

Thevendram v Minister for Immigration and Multicultural Affairs [1998] FCA 662 applied

Chen v Minister for Immigration and Multicultural Affairs [1999] FCA 1022 applied

Emiantor v Minister for Immigration and Multicultural Affairs and

Okah v Minister for Immigration and Multicultural Affairs [1998] FCA 1186 applied

Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 applied

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 applied

Mohamed v Minister for Immigration and Multicultural Affairs [1998] FCA 485; (1998) 83 FCR 234 applied

KUHAPRIYA SOMASKANDAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 39 of 1999

CARR J

22 OCTOBER

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 39 OF 1999

BETWEEN:	KUHAPRIYA SOMASKANDAN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	CARR J
DATE OF ORDER:	22 OCTOBER 1999
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent's costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 39 OF 1999

BETWEEN:	KUHAPRIYA SOMASKANDAN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	CARR J
DATE:	22 OCTOBER 1999
PLACE:	PERTH

REASONS FOR JUDGMENT

Introduction

1 This is an application to review a decision of the Refugee Review Tribunal, made on 13 April 1999, affirming the decision of a delegate of the respondent to refuse to grant the applicant a protection visa.

2 To be entitled to a protection visa, an applicant must be a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 ("the Refugees Convention").

3 Australia has protection obligations under the Refugees Convention [(Art 1A(2)] to any 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; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it."

Factual background

4 The applicant, who was born on 20 October 1969, is a national of Sri Lanka, of Tamil ethnicity and Hindu religion. She is unmarried. The applicant was educated at a school in Sri Lanka between 1975 and 1989. Until August 1989 her home had been in Jaffna. She then studied music in India between August 1989 and June 1991 when she returned to Sri Lanka. On her return to Sri Lanka she lived with her uncle in Colombo from June 1991 to February 1994. In February 1994 the applicant went to Brunei where she lived with an aunt until April 1996. The aunt and her husband retired and moved to the United States of America. The applicant did not attempt to obtain a visa to go to the United States of America with them but decided, because her brother was in Perth, to come to Australia. She first returned to Sri Lanka for about two months. On 23 June 1996 the applicant flew from Colombo to Perth where she arrived on the following day, entering on a student visa.

5 On 29 July 1998 the applicant lodged an application for a protection visa. This was refused, on 17 September 1998, by a delegate of the respondent. On 15 October 1998 the applicant applied to the Tribunal for a review of that decision.

The applicant's claims

6 In her original application to the respondent the applicant's claims were as follows:

"My father was an active supporter of Tamil Tigers Liberation movement. He used to act as an interpreter and handle secret documentation, translations and drafting for them. Since June 1991, I and my mother lived with my uncle in Colombo, though my mother did go back to Jaffana (sic) in between, but lived with my uncle permanently from 1993. She died on 8 December 1993.

My uncle is now almost 70 years of age. After my mother's death he has been unable to either support me or provide any protection. In January 1994, I moved to Brunei, and came to Australia in June 1996.

I have no other person to either support me or provide protection in Sri Lanka.

. . .

My father's whereabouts are not known. My house in Jaffna has been bombarded and I believe it is destroyed. I have only one brother who is in Australia. My mother is deceased. I being a woman have serious fears for my life if I go back to Sri Lanka.

. . .

My brother has already applied for a Protection Visa, and my father is missing. I do not think that in such a situation the Sri Lankan authorities will let me travel to Jaffna without questioning and restricting me.

. . .

Because of my Tamil background and also because of my father's active support for Tamil Tigers, I think the Sri Lankan authorities will harm me."

7 On 29 July 1998 a differently constituted Tribunal had concluded that the applicant's brother was a refugee. The respondent's delegate, in deciding the applicant's application, distinguished between the risk of persecution of young Tamil males with real connections to the Tamil Tigers Liberation movement ("the LTTE"), and the applicant's risk profile.

8 Before the Tribunal the applicant advanced similar claims to those in her original application, but supplemented them with submissions directed to refuting the proposition that young Tamil women were less at risk of persecution than young Tamil men.

The Tribunal's Decision

9 The Tribunal accepted the applicant and her brother as credible witnesses. The Tribunal made no express finding that the applicant held a subjective fear of persecution for a Convention reason. The Tribunal, in its reasons, set out its understanding of the relevant law in terms to which the applicant takes no exception. It then reviewed the applicant's claims and the further documentary evidence submitted to it on her behalf. The Tribunal then turned to what it described as "reliable external accounts of the current situation in Sri Lanka". It set out extracts from such information, at some length, in its reasons. The Tribunal reviewed the evidence given by the applicant and her brother and then posed for itself a question in the following terms:

"The question then for the Tribunal is whether the Applicant is at risk of persecution by this generalised context of violence or for any circumstances particular to herself."

10 My assessment is that that was the Tribunal's way of asking whether the applicant held a well-founded fear of persecution for one of the five grounds listed in the Refugees Convention, a matter to which the Tribunal had referred two paragraphs earlier and also in the introductory portion of its reasons. I see no legal error in the Tribunal's formulation of the question.

11 I think that a fair reading of the Tribunal's reasons shows that it found that the applicant had not suffered persecution before she left Sri Lanka, first of all for study in India, then for employment in Brunei and finally for study in Australia.

12 The Tribunal then asked itself whether the applicant's circumstances or the situation within her country had changed in such a way that she would face a real chance of persecution should she return.

13 The Tribunal said that it was not satisfied that the applicant's father had been identified as an LTTE supporter or that the applicant herself "would be implicated for reasons of her father's past activities". The Tribunal distinguished the applicant's situation from that of her brother. The Tribunal then reached its final conclusions in these terms:

"It does not accept that life in Colombo is at a point where no Tamil woman is safe in leaving her house or that the government is so dissolute that it permits anarchy of this sort [a reference to detention, imprisonment and rape in the north of Sri Lanka]. It does accept that more needs to be done but does not accept that the Applicant presents a profile of a person who faces a real chance of this particular form of persecution.

The Tribunal accepts that the Applicant would prefer not to return to her country of nationality where people of her ethnicity continue to be under suspicion of supporting the Tamil struggle for independence or autonomy. It accepts that she has only her father, current whereabouts unknown, and an uncle to whom she can return. It accepts that she would have to find employment and that she could be stopped and her identity checked as a matter of `normal' routine. However, it is not satisfied that these difficulties amount to a finding that her fear of persecution for reasons of her gender, race or imputed political profile. [What the Tribunal meant by this sentence was the subject of some debate at the hearing and is discussed below.] It finds that she has not been persecuted for these reasons in the past and that her own circumstances and the situation in her country do not support a finding that she faces a real chance of persecution in the future."

The Grounds of Review

14 The applicant relies on three grounds of review. Two of those grounds assert that the Tribunal's decision involved an error of law. The third ground is that the Tribunal failed to comply with s 430 of the Migration Act 1958 (Cth) by failing to set out its findings, adequately set out its reasons for decision and adequately to refer to the evidence or other material on which its findings of fact were based.

Ground 1: "The decision involved an error of law, being an error involving an incorrect interpretation of the applicable law".

15 The applicant's complaint that the Tribunal failed to consider whether she subjectively feared persecution for a Convention reason appears in both Ground 1 and Ground 3 of her application for review.

16 In my view, that complaint can be disposed of very briefly. To start with, it is implicit from the Tribunal's reasons that it accepted that the applicant had such a subjective fear. First, the Tribunal recognised this as the second of the four key elements which it identified on pages 3 and 4 of its reasons. Secondly, it is clear from the transcript of the proceedings before the Tribunal, that it accepted the applicant as a credible witness. The whole focus of the Tribunal's reasons was on the fourth element, namely whether the applicant's fear of persecution was a well-founded one. The Tribunal recognised this as being an objective requirement. This was the real issue. In those circumstances, in my view, it was unnecessary for the Tribunal positively and expressly to address the question of subjective fear: Thevendram v Minister for Immigration and Multicultural Affairs [1998] FCA 662 at 10-11; Chen v Minister for Immigration and Multicultural Affairs [1999] FCA 1022 at para 25; and Emiantor v Minister for Immigration and Multicultural Affairs; Okah v Minister for Immigration and Multicultural Affairs [1998] FCA 1186 at 3.

Grounds 1 and 2: Whether the Tribunal incorrectly interpreted or applied the law

to the facts

17 This complaint is common to both Grounds 1 and 2 of the application. In Ground 1 the complaint is that the Tribunal failed to consider whether the applicant's subjective fear was objectively well founded. In Ground 2 the applicant says that the Tribunal having found (on her case) certain facts, particularised in Ground 2(c)(i) and (ii), the Tribunal's conclusion that the applicant's fear was not well-founded itself demonstrated that it failed correctly to apply the law to the facts.

My Reasoning

18 As I have mentioned, the Tribunal correctly set out the applicable law and expressly referred to the requirement that an applicant's fear of persecution for a Convention reason must be a well-founded fear. It, again correctly, said (at 4):

"A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or if it is mere speculation. A `real chance' is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent."

19 The Tribunal referred to and assessed the evidence connecting the applicant's father with the LTTE. It did the same in respect of the applicant's claim that young Tamil women (not just young Tamil men) in Sri Lanka were at risk of gross violation of their human rights. It considered the documentary evidence put forward by the applicant in that regard. It looked at other documents, including independent reports (its review of these reports occupied three pages of its reasons). The Tribunal found that the applicant had not been persecuted before she left Sri Lanka and that her circumstances and the situation in Sri Lanka had not changed in such a way as to face her with a real chance of persecution should she return. It drew in its conclusions in the paragraphs which I have set out above.

20 Mr S A Walker, counsel for the applicant, criticised as being "somewhat odd" the manner in which the Tribunal differentiated between the circumstances which gave rise to a differently-constituted Tribunal finding in favour of the applicant's brother and the circumstances in this matter, particularly the manner in which it dealt with the evidence of the applicant's brother. Mr Walker acknowledged that this was not put forward as a ground of review, but as something which "would properly engage the Court's attention" in considering whether the Tribunal had correctly understood and applied the law. He said that the Tribunal's attempt to distinguish between the two cases appeared to have some difficulty. In my view, that submission does not raise reviewable error. A fair reading of the Tribunal's reasons is that, on its assessment of matters personal to the applicant and the situation generally in Sri Lanka, there was no real chance of the applicant being persecuted for the Convention reasons which she advanced.

21 Next the applicant contended that the Tribunal had found the following facts:

(i) that she was a young Tamil from Jaffna, the seat of conflict between the LTTE and the government; and

(ii) that her father had undertaken work for the LTTE, and this might have become known or might in the future become known to the Sri Lankan authorities.

22 The applicant's case was that the only result which could flow from the finding of those basic facts was that the applicant's fear of persecution was objectively well founded.

23 Although it is not necessary for me to decide the point, I do not think that it is beyond argument that the Tribunal made the second of the above findings. The Tribunal said that it must be considered possible that a rumour of the applicant's father's translations for the LTTE had reached the authorities but that, if this was so, it had not impinged on the applicant's profile with the authorities in the past. That can be seen from page 13 of its reasons where the Tribunal adds that it "... is not satisfied that the Applicant's father has been identified as an LTTE supporter or that the applicant herself would be implicated for reasons of her father's past activities."

24 Even if the Tribunal had found the facts set out above, I do not think that this ground has been made out. In this matter it is not possible to take those two factual conclusions in isolation and deduce therefrom that only one final finding was open. Those two factual conclusions would have to be considered in the light of the reasons as a whole. As I have said, the Tribunal carefully considered the applicant's claims in relation to her father's involvement with the LTTE, the other country information in relation to Sri Lanka and the particular personal circumstances of the applicant to which I have referred above. In my opinion it was open to the Tribunal to find that any fear of persecution which the applicant might have, was not well-founded. This ground of review is not, in my view, made out.

Ground 3: Failure to comply with s 430

25 Part of the complaint in Ground 3 is that the Tribunal failed to set out its findings on whether the applicant subjectively feared persecution for a Convention reason. I have already dealt with that matter above. There remain the complaints that the Tribunal failed to set out findings as to whether any such fears held by the applicant were well-founded, failed adequately to set out its reasons for its decision and to refer adequately to the evidence or any other material on which its findings of fact were based.

26 I have already set out above the approach which the Tribunal took, the matters to which it had regard, including matters personal to the applicant and her family and the general situation in Sri Lanka. The authorities show that the Tribunal is not required to deal with every aspect of the evidence. Its reasons are entitled to a beneficial construction. It is sufficient if the reasons enable a party to the dispute to comprehend why it was that the Tribunal reached the conclusion it did. The authorities include Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 at 413-414; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272 and to cite the following passage from Mohamed v Minister for Immigration and Multicultural Affairs [1998] FCA 485; (1998) 83 FCR 234 at 244-245:

"For an applicant to succeed on review in setting aside the decision of a tribunal for failure to comply with s 430, it is obvious that there must be a substantial failure to comply with the section before a ground of review is made out. Particularly the Court should not impose upon the Tribunal a standard of perfection in both fact finding and process of reasoning which is unattainable. Section 430 and sections in other Acts of similar purport give legislative guidance to a Tribunal of its obligation to so construct its reasons that a party to the dispute before a Tribunal can comprehend why it was that the Tribunal reached the conclusion it did and can consider whether to seek judicial review of the decision or appeal it. Likewise the reasons provide the framework in which a judicial review of the decision may proceed by informing the Court of the process adopted by the Tribunal in reaching its conclusion."

27 In the end, Mr Walker's submissions focussed on the paragraph from the Tribunal's reasons which I have set out above at paragraph 13. It is an important paragraph. The second last sentence is not entirely clear. It is likely that a word or several words are missing. Mr Walker submitted that the paragraph was not an adequate encapsulation of all the facts and that the sentence in particular was not an adequate finding of fact. There was some discussion about the meaning of the reference to "these difficulties". I am satisfied that by referring to "these difficulties" the Tribunal was referring to the three matters described in the immediately preceding sentence i.e. only having two relatives in Sri Lanka to whom the applicant can return, having to find employment and thirdly being stopped and having her identity checked as a matter of normal routine. In the next sentence the reference to "these reasons" must, in my view, be construed as a reference to the reasons of gender, race or imputed political profile. The final sentence of the challenged paragraph makes it sufficiently clear, in my opinion, that the Tribunal was drawing in its conclusion that the applicant had not been persecuted for those reasons in the past and that her own circumstances and the situation in Sri Lanka did not support a finding that she faced a real chance of persecution in the future.

28 Taking the Tribunal's reasons as a whole, I reject the submission that the Tribunal failed adequately to set out its reasons and adequately to refer to the evidence and other material on which its findings were based and that it failed to set out its findings as to whether any fears held by the applicant were well-founded. In my opinion, it complied with the requirements of s 430 of the Act.

Conclusion

29 For the above reasons the application will be dismissed with costs.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Justice Carr.

Associate:

Dated: 22 October 1999

Counsel for the Applicant:	Mr S A Walker with Mr S Shakur
Solicitor for the Applicant:	Messrs Shakur & Co
Counsel for the Respondent:	Mr P R Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	10 September 1999
Date of Judgment:	22 October 1999