Dalpatadu v Minister for Immigration & Multicultural Affairs [2000] FCA 26 (24 January 2000)

Last Updated: 25 January 2000

FEDERAL COURT OF AUSTRALIA

Dalpatadu v Minister for Immigration & Multicultural Affairs [2000] FCA 26

MIGRATION - Refugee Review Tribunal - opportunity to give evidence - statement of reasons for decision and findings on relevant questions of fact - no ground of error made out.

Migration Act, ss 425 (1)(a), 430 (1)(b),(c)

Shivasha Kosmapatabendige Dalpatadu v Minister for Immigration & Multicultural Affairs

N 596 of 1999

Whitlam J

Sydney

24 January 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 596 OF 1999

BETWEEN:	SHIVASHA KOSMAPATABENDIGE DALPATADU APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	WHITLAM J
DATE OF ORDER:	24 JANUARY 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application is 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
NEW SOUTH WALES DISTRICT REGISTRY	N 596 OF 1999

BETWEEN:	SHIVASHA KOSMAPATABENDIGE DALPATADU APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	WHITLAM J
DATE:	24 JANUARY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an application under s 476 of the Migration Act 1958 ("the Act") to review a decision of the Refugee Review Tribunal ("the Tribunal") made on 27 May 1999.

2 The applicant is a Sri Lankan national of Sinhalese ethnicity. She was born in Sri Lanka on 29 November 1965. The applicant was issued with a Sri Lankan passport on 25 May 1995, which was endorsed as valid for all countries. (The number of her previous passport was also recorded in the passport.) She obtained a visitor's visa at the Australian High Commission in Colombo on 2 June 1995 and first arrived in Australia on 2 July 1995. Whilst here, the applicant was granted on 13 November 1995 a Sri Lanka (Temporary) visa permitting her to travel to, enter and remain in Australia until 31 July 1996. She then returned to Sri Lanka on 20 November 1995. The applicant entered Australia again on Christmas Eve 1995. She applied for a protection visa on 21 June 1996.

3 On 18 March 1997 a delegate of the respondent ("the Minister") refused to grant the applicant a protection visa. She applied for a review by the Tribunal. A review was conducted, which included a hearing on 22 April 1998. The Tribunal affirmed the delegate's decision on 13 July 1998, but that decision was set aside by a consent order of the Court made on 30 October 1998 and the matter was remitted for reconsideration by the Tribunal to be constituted differently. The applicant gave the Tribunal a statutory declaration made on 12 January 1999, and a submission dated 12 February 1999 was made on her behalf by Mr Karp (the solicitor who has appeared for her on the present application). A hearing was held by the Tribunal on 19 and 24 February 1999. Further submissions were made by Mr Karp, and on 27 May 1999 the Tribunal affirmed the delegate's decision.

4 The Tribunal prepared a statement comprising thirty-four pages pursuant to s 430(1) of the Act. The Tribunal described in considerable detail (at pp 3-21) the claims made and evidence submitted by and on behalf of the applicant over the period of time from her initial application to Mr Karp's final submission dated 11 May 1999. It then summarized (at pp 21-25) what it described as independent evidence under the sub-headings "Human Rights in Sri Lanka", "Discipline in the LTTE", "Sinhalese supporters of the LTTE", "Polarisation between the Sinhalese and Tamil communities" and "LTTE Safehouses". (LTTE is an acronym from Liberation Tigers of Tamil Eelam.) The next section of the Tribunal's statement (pp 25-34) is headed "Findings and Reasons".

5 The Tribunal said (at p 25):

"The essence of the applicant's claim to be a refugee is twofold:

1. That as a result of her relationship with a Tamil who eventually joined the LTTE, the applicant has been imputed with a political opinion of being an LTTE supporter.

2. That the applicant's former boyfriend is now seeking to harm her because of her refusal to continue to have a relationship with him."

6 The Tribunal made adverse findings on the applicant's credibility. It said (at pp 26-27):

"Whilst the Tribunal is satisfied that the applicant may have had a relationship with a Tamil man until May 1993, it cannot be satisfied that the applicant's claim regarding her claimed arrest in May 1993 and any of the events thereafter are credible. The applicant's claims and evidence in this regard are implausible, contradictory, internally inconsistent and moreover, inconsistent with the independent evidence.

In fact, given the range of inconsistencies between the applicant's application for a visa in Sri Lanka; her written claims to the Department of Immigration; her interview with the Department of Immigration; and her three hearings with the Tribunal; and the inherent implausibility in her claims and evidence, the Tribunal cannot be satisfied that the applicant has been truthful in her claims and evidence, and cannot be satisfied that she has any claim to have a well founded fear of persecution for a Convention reason.

Specifically, the Tribunal does not accept as credible or plausible:

* The applicant's claims and evidence regarding how and why she stopped working at the CTB [Ceylon Transport Board] and claims surrounding her application for a visa to Australia

* The applicant's claims and evidence regarding the applicant's arrest in May 1993 or the existence, or use of, a "confession" against her

* The applicant's claims and evidence regarding being contacted by her former boyfriend in 1995 and his warning to her

* The applicant's claims and evidence regarding her former boyfriend's approach to her mother, his arrest at her mother's home, and the resulting on-going interest in the applicant's mother and interest in the applicant

* The applicant's claims and evidence regarding being forced by the authorities to return to Sri Lanka

* The applicant's claim and evidence regarding being arrested in November 1995 and being forced to "confess" to supporting the LTTE

* The applicant's claims and evidence regarding her former boyfriend's attempts to locate and harm her."

7 The Tribunal then proceeded (at pp 27-33) to make findings in respect of the claims mentioned in each dot point in the above excerpt. After making those findings, it stated (at pp 33-34):

"Taken as a whole, the Tribunal cannot be satisfied that the applicant has been truthful in her claims and evidence to the Tribunal. The Tribunal has found the applicant to be completely lacking in credibility in her central claims to be a refugee namely:

* That as result of her relationship with a Tamil who eventually joined the LTTE, the applicant has been imputed with a political opinion of being an LTTE supporter.

* That the applicant's former boyfriend is now seeking to harm her because of her refusal to continue to have a relationship with him.

The Tribunal has found the applicant to be without credibility in other aspects of her claims and evidence namely; the applicant having misled the Australian High Commission in Sri Lanka, the Department of Immigration and the Tribunal in matters relating to why she obtained her visa in the manner she did; the applicant's arrest in May 1993 or the existence, or use of, a "confession" against her; being contacted by her former boyfriend in 1995 and his warning to her; her former boyfriend's approach to her mother, his arrest at her mother's home, and the resulting on-going interest in the applicant's mother and interest in the applicant; being forced by the authorities to return to Sri Lanka; being arrested in November 1995 and being forced to "confess" to supporting the LTTE.

Given the significant adverse findings in credibility in regard to the matters mentioned above, the Tribunal cannot accept as credible the applicant's claim that the Sri Lankan authorities have any on-going interest in her whatsoever.

At the conclusion of the hearing (24 February 1999) the Tribunal pointed out to the applicant that there were numerous contradictions in her claims at various stages in the refugee process, and noted the overall implausibility of her claims and their lack of consistency with the independent evidence. The applicant was given the opportunity to clarify the contradictions regarding the various claims that she has made, and did so through her adviser. The Tribunal has given careful consideration to these responses, but cannot be satisfied that they have clarified the significant and numerous contradictions and implausibilities in any meaningful way.

Considering the applicant's mendacity on not only the essential elements of her claim, but other aspects of her claims discussed above, as well as well [sic] as the numerous inconsistencies in her claims and evidence, and the inconsistencies with the independent evidence, the Tribunal finds that the claims of harm, and threats of harm, by the Sri Lankan authorities, or by the applicant's former boyfriend, to be a fabrication. Given the significant adverse findings on credibility in relation to the applicant, the Tribunal cannot be satisfied that the applicant has a real chance of being persecuted for a convention reason in Sri Lanka in the foreseeable future, and is therefore not satisfied that the applicant's fear of persecution for a Convention reason is well founded.

CONCLUSION

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.

DECISION

The Tribunal affirms the decision not to grant a protection visa."

8 The grounds specified in the amended application for judicial review are as follows:

"1. The Tribunal failed to observe procedures which it was required by law to observe,

Particulars

a) Failure to address, and make findings on a material question of fact, namely as to how a Singhalese who formed a relationship with a Tamil would be treated by Singhalese society and the Sri Lankan Security Forces

b) Failure of the Tribunal to give reasons for its decision, in that it failed to give reasons as to why it rejected submissions which it invited on matters going to the credibility of the applicant.

c) Failure of the Tribunal to hold a hearing as required by s 425(1) Migration Act, in that the Tribunal precluded comment on an issue of fact material to the decision.

3. There was no evidence or other material to justify the making of the decision.

Particular

a) The Tribunal based its decision on the existence of a particular fact, being a contradiction in the applicant's evidence as to the circumstances of her leaving her employment in Colombo, Sri Lanka, and that fact did not exist.

b) The Tribunal based its decision on the existence of a particular fact, being that in her interview with a delegate of the respondent Minister the applicant denied applying for leave from the Ceylon Transport Board (CTB) and that fact did not exist.

9 Mr Karp identifies the "procedures" relied on for the purposes of the particulars in paragraphs (a) and (b) of ground 1 as those required by s 430(1)(b) and (c) of the Act. At the relevant time ss 425 and 430(1) were in the following terms:

"425. (1) Where section 424 does not apply, the Tribunal:

(a) must give the applicant an opportunity to appear before it to give evidence; and

(b) may obtain such other evidence as it considers necessary.

(2) Subject to paragraph (1) (a), the Tribunal is not required to allow any person to address it orally about the issues arising in relation to the decision under review."

"430. (1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

(a) sets out the decision of the Tribunal on the review; and

(b) sets out the reasons for the decision; and

(c) sets out the findings on any material questions of fact; and

(d) refers to the evidence or any other material on which the findings of fact were based."

10 Mr Karp takes issue with the Tribunal's identification of the "essence of the applicant's claims". He submits that the applicant claimed that her problems arose because of her family's relationship with Tamils and that members of her family were abused and victimised by neighbours and by the police for that contact. Mr Karp says that his submissions to the Tribunal made the point that, since Tamils are suspected of assisting the LTTE, it was plausible that those associating with Tamils could be imputed with a political opinion in support of the LTTE. Such matters, he says, underpinned the applicant's claims. Mr Karp submits that the Tribunal was thus obliged, by par (c) of s 431(1), to make a finding "as to how Singhalese who associate and/or have personal relationships with Tamils are viewed by Singhalese society or by the security forces". This represents a subtle refinement of the suggested material question or questions of fact hinted at in the particulars set out in paragraph (a) of the first ground of challenge.

11 It is true that in his submission dated 12 February 1999 to the Tribunal Mr Karp complained (in section B) that the statement prepared by the Tribunal whose decision was subsequently quashed all but ignored the applicant's claims as to association with Tamils prior to the beginning of the relationship with her boyfriend. However, in the same submission (section D) Mr Karp said: "The claim here is that Ms Dalpatadu has been identified with Tamils and the LTTE because of her association with a young Tamil male who is now known to have joined the LTTE." Later (in section E) he said:

"In my submission the consequences of a young Singhalese woman having a relationship with a Tamil man, and especially a Tamil man who is now (if not previously) suspected of being in the LTTE, is that the full weight of the Singhalese fears of miscegenation and race treachery would fall upon her."

12 On any view of the meaning of the expression "material questions of fact" in s 430(1)(c), the Tribunal was not required to make findings about the views held by Sinhalese society. What it regarded itself as bound to do, and what it did do, was to deal with the actual claims made by the applicant in the context of the Convention definition of refugee. The Tribunal expressly declined (at p 31) to find that a political opinion of support for the LTTE would be imputed to the applicant by the Sri Lankan authorities. It referred to the evidence on which it relied, including the fact that the applicant was Sinhalese. What use the Tribunal made of the evidence before it was, of course, a matter for it. Mr Karp's first submission is rejected.

13 The challenge based on par (b) of s 430 (1) of the Act rests on Mr Karp's assertion that the Tribunal failed to address the content of the submissions he made following the hearing on 19 and 24 February 1999. In a letter dated 24 March 1999, after initially accusing the Tribunal of not conducting the hearing "fairly" and of harassment, Mr Karp made a series of submissions on aspects of his client's claims, in the course of which he referred to Australian diplomatic cables from Colombo, a Danish government report and reports from non-governmental organizations. The Deputy Registrar of the Tribunal wrote to Mr Karp on 22 April 1999 inviting his comments on two further cables from the Australian diplomatic post in Colombo. Mr Karp replied on 11 May 1999 with a diatribe about the Department of Foreign Affairs and Trade ("DFAT") being part of an administrative and government apparatus that is hostile to onshore refugee applicants and submitted that its "`information' should be treated with suspicion". He enclosed an article from a Sinhalese publication (the name of which he said was Lakbeema but the translator rendered as Lakbima) and referred to the same Danish government report. In addition to commenting on the DFAT information, Mr Karp made submissions on a second topic under the headed "The issue of the applicant's application for a visa to Australia, and what she told her work colleagues". He enclosed an edited version of the translation of the tapes of the applicant's Departmental interview and went on to submit that his client's later statements on that topic were "entirely consistent" with what she had said in that interview, which was "not in as much detail".

14 Mr Karp submits that his client does not know why the "explanations" he offered in the post-hearing correspondence were rejected. He complains that the Tribunal's statement (at p 34) in the second last paragraph of the section heading Findings and Reasons, that "it cannot be satisfied that [his responses] have clarified the significant and numerous contradictions and implausibilities in any meaningful way", does not reveal its reasoning as required by par (b) of s 430(1).

15 In fact, in making the findings on the claims mentioned in its first dot point, the Tribunal does not seem to have expressly dealt with Mr Karp's submissions. It said (at p 28):

"The applicant has not, despite having an opportunity to do so, addressed the central inconsistency - the different information provided to the Department and then the Tribunal, and has failed to give a reasonable explanation for her dishonesty. It is not simply a case of the applicant providing "more detail" at her hearing, because her claims to the Department, her statement to the Tribunal and her evidence at hearing are factually different."

16 In any event, Mr Karp's submission misconceives the role of reasons under s 430 (1) of the Act. They are meant, in the present context, to inform the applicant why her claims to have a well-founded fear of persecution for a Convention reason have not been accepted. Reasons are not required to address every argument and speculation advanced by her adviser. The challenge based on s 430 (1)(b) also fails.

17 The remaining "procedural" point based on s 425 is entirely hopeless. The requirements of that section have been explained in Minister for Immigration and Multicultural Affairs v Cho [1999] FCA 946; (1999) 164 ALR 339 by Tamberlin and Katz JJ at 346-350 and by Sackville J at 354-356. As Sackville J says, the circumstances are likely to be very rare where the Tribunal actually conducts a hearing and does so in such a manner that it denies an applicant the opportunity contemplated by s 425 (1)(a). In the present case the "hearing information form" in evidence suggests that on the first day (19 February 1999) the hearing lasted approximately four and a half hours, yet no transcript of that day's proceedings is in evidence before me. In his letter dated 24 March 1999 to the Tribunal, Mr Karp referred to his client's "protracted hearing before the Tribunal". The transcript of the second day (24 February 1999), which is in evidence, shows that Mr Karp did not request any further evidence be taken from his client. He indicated that he was content to make written submissions on various topics to the Tribunal.

18 Mr Karp says that the Tribunal never gave any indication that it regarded as central to its decision the claims it mentions in the final dot point of the catalogue of the applicant's claims which it did not accept as credible or plausible. The references in Cho to the passage from the judgment of Gummow and Hayne JJ in Abebe v Commonwealth [1999] HCA 14; (1999) 73 ALJR 584 show how untenable Mr Karp's argument is. The submission that the Tribunal failed to observe the requirements of s 425 of the Act is rejected.

19 That leaves only the "no evidence" point advanced as the second ground of challenge. I doubt that s 476 (4) of the Act leaves much scope for attacking findings on credit. However, the judgment of Heerey J in Fernando v Minister for Immigration and Multicultural Affairs [1999] FCA 962 shows how difficult it will be to succeed on such a ground. The excerpts I have set out from the Tribunal's statement are sufficient to indicate that, as counsel for the Minister correctly submits, even if it were accepted as a fact that the applicant had not denied that she had applied for leave from her employer, this ground must fail because there were still plenty of other inconsistencies and implausibilities in the evidence upon which the Tribunal reached its view about the applicant's credit. This ground also fails.

20 The application is dismissed with costs.

I certify that the preceding twenty

(20) numbered paragraphs are a true

copy of the Reasons for Judgment

herein of the Honourable Justice

Whitlam

Associate:

Dated: 24 January 2000

Mr L.J. Karp of McDonnells, solicitors, appeared for the applicant.

S.B. Lloyd of counsel, instructed by the Australian Government Solicitor, appeared for the respondent.

Date of hearing: 14 October 1999

Date of judgment: 24 January 2000