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Federal Court of Australia |
Last Updated: 15 September 2004
FEDERAL COURT OF AUSTRALIA
VOAX v Minister for Immigration & Multicultural & Indigenous Affairs
MIGRATION – visa – protection visa
– Tribunal rejected specific claims of activities on behalf of LTTE
– whether Tribunal
ignored a substantial element of applicants’ case
– whether material focussed on risk of persecution by reason of being
Tamils returning to Sri Lanka and failed asylum seekers – whether fact
that peace negotiations proceeding an irrelevant consideration
Judiciary Act 1903 (Cth) s 39B
Migration Act 1958
(Cth) ss 5(1), 36,
474
VOAX,
VOAY AND VOAZ v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS
AFFAIRS
V 362 of 2003
GRAY J
15
SEPTEMBER 2004
MELBOURNE
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VOAX
FIRST APPLICANT VOAY SECOND APPLICANT VOAZ THIRD APPLICANT |
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AND:
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THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS
AFFAIRS
RESPONDENT |
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DATE OF ORDER:
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WHERE MADE:
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THE COURT ORDERS
THAT:
1. The application be
dismissed.
2. The applicants 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.
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AND:
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REASONS FOR JUDGMENT
The nature and history of the proceeding
1 By their amended application in this proceeding, the applicants seek relief pursuant to s 39B of the Judiciary Act 1903 (Cth), for the purpose of quashing a decision of the Refugee Review Tribunal (‘the Tribunal’). The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (now the Minister for Immigration and Multicultural and Indigenous Affairs) (in both cases ‘the Minister’) to refuse to grant to the applicants protection visas.
2 By s 36 of the Migration Act 1958 (Cth) (‘the Migration Act’), there is a class of visas to be known as protection visas. A criterion for a protection visa is that the person applying for it be a non-citizen in Australia to whom the Minister is satisfied that Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The terms ‘Refugees Convention’ and ‘Refugees Protocol’ are defined in s 5(1) of the Migration Act to mean respectively the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967. It is convenient to call these two instruments, taken together, the ‘Convention’. For present purposes, it is sufficient to note that, pursuant to the Convention, Australia owes 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’.
3 An alternative criterion for a protection visa, pursuant to s 36(2)(b) of the Migration Act, is that the person applying for the visa be a non-citizen in Australia who is the spouse or a dependent of a non-citizen to whom the Minister is satisfied that Australia has protection obligations under the Convention and who holds a protection visa.
4 The applicants are a husband and wife and their child. Although the third applicant has been included in the title to the proceeding, the Tribunal did not deal with any claim of the third applicant, who was born after the first and second applicants had applied for protection visas. They are citizens of Sri Lanka, of Tamil ethnic origins. The first applicant claims to be a person to whom Australia has protection obligations pursuant to the Convention. The claims of the second and third applicants for protection visas are based on their being the spouse and a dependent respectively of the first applicant.
5 The first and second applicants arrived in Australia on 28 August 1998. On 18 September 1998, they applied for protection visas. The Minister’s delegate refused to grant them protection visas. The Tribunal affirmed that decision on 20 July 2001. The applicants applied to this Court to set aside the decision. On 19 March 2002, the Court set aside the decision by consent and remitted the matter to the Tribunal, differently constituted, to be determined according to law. The Tribunal conducted a hearing on 22 August 2002, at which the first and second applicant each gave oral evidence. Two other witnesses also gave evidence. On 19 March 2003, the Tribunal recorded its written decision and its reasons for decision. It handed down its decision and reasons for decision on 11 April 2003. Its decision was again to affirm the decision not to grant protection visas. It is that second decision of the Tribunal that the applicants seek to set aside in the current proceeding.
The first applicant’s claims
6 The first applicant claimed that he would be in danger of arrest and torture by Sri Lankan government authorities, if he should return to Sri Lanka, because he is a Tamil and because of his past association with an organisation called The Liberation Tigers of Tamil Eelam (‘LTTE’), an organisation conducting an armed struggle for a separate Tamil homeland within Sri Lanka. The first applicant also claimed that he was in danger of violence from the LTTE itself, because he had fallen out with the LTTE before coming to Australia, and would be hunted down.
7 The first applicant said that he had done work for the LTTE in Sri Lanka in the 1980s. In late 1988 or early 1989, he had been forced to flee to India to save his life. The LTTE had assisted him to escape to India, where he lived for some months until he was forced to flee again. From September 1989 until August 1998, when he came to Australia, the first applicant lived in Italy. While there, he claimed to have been involved in collecting money for the LTTE.
8 The first applicant said that, in December 1996, the LTTE sent him to Sri Lanka on a visit, with a large amount of money to deliver to nominated people. He also claimed to have taken into Sri Lanka on that visit some other items, which might have been used to carry and detonate explosives. He stayed in Sri Lanka for several weeks and married the second applicant while he was there. He claimed that the marriage was arranged, because the second applicant had no father, and was celebrated in secret. He said that he remained indoors. Notwithstanding this, he claimed that in January 1997 he was arrested by the police and detained for four or five weeks at a location known as the ‘fourth floor’. During this time, he claimed to have been tortured severely and interrogated. A high-ranking LTTE official paid bribes to secure his release and collected him from the ‘fourth floor’. The first applicant returned to Italy and the second applicant followed several months later.
9 The first applicant claimed that, in 1998, the LTTE wanted him to return to Sri Lanka again, but he refused, because he was now married. The first and second respondents then came to Australia.
The Tribunal’s reasons
10 The Tribunal’s written reasons cover some 37 pages of typescript. In the course of those reasons, the Tribunal recounted much more detail of the first applicant’s claims, and of the evidence in support of them, and of the Tribunal’s own testing of the evidence, than is evident from my summary above. The Tribunal also relied on substantial amounts of material from other sources, described as ‘country information’, in dealing with the first applicant’s claims. For the purposes of these reasons for judgment, it is unnecessary to go into the same level of detail.
11 The Tribunal found that the first applicant was not credible. It did so for a number of reasons, including inconsistencies within the first applicant’s evidence and between that evidence and other information, including ‘country information’ that the Tribunal had. Specifically, the Tribunal did not accept that the first applicant was engaged in work on behalf of the LTTE in Italy. It did not accept that he was sent to Sri Lanka in December 1996 as a courier on behalf of the LTTE. It did not accept that he was arrested and held on the ‘fourth floor’ for approximately five weeks, or that he needed to escape and in fact escaped from the ‘fourth floor’. It did not accept that the first applicant and the second applicant were in any danger if they should return to Italy, because it did not accept that there had been a falling out between the first applicant and the LTTE. The Tribunal found that the first applicant was of no interest to authorities in Sri Lanka and did not face a real chance of harm or persecution for any Convention reason, if he should return to Sri Lanka.
12 The Tribunal went on to find that the situation had changed in Sri Lanka since the first applicant left. It referred to ‘country information’, regarding a cease-fire between the LTTE
and the Sri Lankan government and to what it called the ‘ongoing peace process’ being negotiated between the government and the LTTE. The Tribunal referred to:
‘the easing of restrictions in general, ease of travel and movement of people, a return to normalcy, and the agreement that search operations and arrests shall not take place under the Prevention of Terrorism Act but that all arrests will be conducted under the criminal code’.
13 The Tribunal referred to improvements in the situation for Tamils, who no longer had to undergo extensive security checks and identification verification to the degree that they had, in urban centres in the south. Security restrictions had also eased in the government-controlled areas of the north and east and many security checkpoints had been dismantled. The Tribunal also referred to information about the possibility of relocation of Tamils to parts of Sri Lanka other than those controlled by the LTTE and to improvements in the situation of Tamils staying in Colombo. It referred to improvements for Tamils in the north-east and the rest of Sri Lanka as a result of the cease-fire, including less police and security force harassment of the civilian population, a decrease in incidents of arrest, detention and mistreatment in custody and ‘a return to normalcy’. It also referred to information that the police and security forces’ treatment of civilians had improved significantly. On the basis of this information, the Tribunal concluded that the peace negotiations had been advancing and proceeding.
14 The Tribunal also referred to information that hundreds of Tamils who sought refugee status in India had started to return voluntarily to Sri Lanka. In response to the first applicant’s evidence that the peace talks would not succeed, the Tribunal referred to information that the peace process continued to proceed.
15 The Tribunal stated that:
‘In reaching its decision, the Tribunal has considered all the material lodged by the applicant.’
16 In its conclusion, the Tribunal said:
‘Having considered the evidence as a whole, the Tribunal is not satisfied that the first named applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the first named applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.’
17 The Tribunal referred to the fact that no specific claims were made by the second applicant for protection in her own right, and decided that the second applicant could not be granted a protection visa because the first applicant did not satisfy the criteria for such a visa.
The applicants’ case in Court
18 Although filed by a solicitor on behalf of the applicants, the original application to the Court was not specific as to the grounds relied on. It contained a number of grounds, with indications that particulars would be notified prior to the hearing. In response to a direction of the Court, an amended application was filed on 29 August 2003. The amended application raised several grounds, of which only two were argued by counsel for the applicants at the hearing of the proceeding. They were as follows:
‘(a) The Tribunal failed to take account of relevant material or
considerations, in failing to determine whether the applicants or any
of them had well founded fear of persecution, whether at the time of
the decision or in the reasonably foreseeable future, for reason of race
or imputed political opinion or membership of a particular social
group:
(i) by reason of them being Tamil; or
(ii) by reason of them of being persons returning to Sri Lanka; or
(iii) by reason of them of being Tamils returning to Sri Lanka; or
(iv) by reason of them of being persons returning to Sri Lanka as
failed asylum seekers.
...
(d) The Tribunal had regard to an irrelevant consideration or material in
making the decision in that it regarded as relevant whether peace
negotiations were proceeding;’
19 As to the first ground, counsel for the applicant contended that there was material before the Tribunal suggesting that Tamils in Sri Lanka were subject to a high risk of detention and torture and that this risk was increased if a Tamil returned to Sri Lanka, having sought asylum in another country unsuccessfully. Counsel for the applicants contended that the material before the Tribunal was so focused on these issues as to require the Tribunal to deal specifically with the issues and the Tribunal had failed to do so. He contended that this amounted to a failure by the Tribunal to deal with the applicants’ claim, or a significant element of that claim.
20 As to the second argument, counsel for the applicants contended that, by the manner in which the Tribunal had regard to the progress of the peace process, it is clear that the Tribunal regarded the continuation of that process as a sufficient answer to the question whether the applicants or any of them had a well-founded fear of persecution for a Convention reason. This was to have regard to an irrelevant consideration. The critical issue was whether there was a real chance that any of the applicants might in the reasonably foreseeable future suffer persecution. This issue was not to be disposed of by a finding that the peace negotiations were proceeding.
The situation of Tamils in Sri Lanka
21 In dealing with the first issue raised by counsel for the applicants, it is necessary to examine the material to which counsel for the applicants referred as demonstrating that Tamils, particularly those returning to Sri Lanka as failed asylum seekers, were subject to arrest of detention and torture.
22 The material before the Tribunal included a nine page letter, with 57 pages of attachments, forwarded by the migration agent on behalf of the first applicant to the Tribunal, as part of his case for review of the decision of the Minister’s delegate. Within the 66 pages of that material are the following items, to which counsel for the applicants drew specific attention:
• A statement that ‘the Tamil people do not enjoy the protection of the government.’ This was followed by some information about what happened to Tamils arrested under the
Prevention of Terrorism Act.
• Extracts from reports of Amnesty International for 1996, 1998, 1999 and 2000, with news items dated 5 March 2000, 3 August 1998, 29 October 2000, 19 January 1997, 10 November 1996, 10 November 1996, 24 May 1998, 27 March 1998, 15 June 1997, 16 February 1997, 16 August 1998, 29 December 1996 and 29 December 1996.
• A report prepared and published by the Forum for Human Dignity in Colombo, regarding the situation of deportees in Sri Lanka.
• A reference to material from the Australian Department of Foreign Affairs and Trade (‘DFAT’), undated, and to statistics from an Amnesty International Report of August 1996, relating to those who had disappeared.
• A reference to an earlier decision of the Tribunal, which bore a 1996 number, in which the Tribunal had found that any Tamil with a connection to the
LTTE, or any Tamil who was young, male, without a national identity card and from the
north or east, new to Colombo, having no family in Colombo and not speaking Sinhalese,
was at risk of detention.
• A statement that ‘those who apply for political asylum in foreign countries and are refused and sent back to Sri Lanka are arrested at the Airport itself, or later and some of them mysteriously disappear.’ This was followed by a reference to another 1996 decision of the Tribunal, which concerned a Tamil youth who returned to Sri Lanka in 1996, having been refused refugee status in Germany. On his return, he was arrested and his whereabouts were thereafter unknown.
• A statement that the first applicant ‘is afraid that if he is sent back to Sri Lanka, he will be definitely arrested at the Airport and later killed when they come to know his back- ground.’
• In the report of the Forum for Human Dignity, an account of 20 asylum seekers deported from Germany, who arrive in Sri Lanka on 16 March 2000. On arrival, the police arrested them and after interrogation they were produced to a magistrate’s court. Eighteen of them were released immediately and the magistrate remanded two, who were subsequently released.
• In the report of the Forum for Human Dignity, an assertion that returnees in Colombo ‘are constantly at risk of re-arrested (sic) at checkpoints.’ Because most lacked proper documentation to prove their identity, they were vulnerable, as Tamils, to be arrested on suspicion of being LTTE.
• A letter, quoted in the Forum for Human Dignity report, in relation to a Tamil deportee from Germany, who was arrested by police at the airport and released on bail by a magistrate. He was later released after payment of a fine. When he went to the police to register his name with them, he was arrested, along with his brother, and both were now remanded in prison. The letter was dated 29 September 1998.
• A statement in the Forum for Human Dignity report that it was highly probable that, once a Tamil deportee was released from custody at the airport, he could be rearrested under the Prevention of Terrorism Act on suspicion of having connections with subversives. The probabilities of torture are very high when one is arrested under this Act. There is no provision for bail. Over 500 ‘clients’ of the Forum for Human Dignity had been charged under the Prevention of Terrorism Act. Almost all involve torture and ill treatment of the Tamil detainee. As long as they were being held according to law, the anti-harassment committee would not help. Many Tamils were held under the Prevention of Terrorism Act for years without being charged. All this would pose a major risk to a returned asylum seeker from the north. In the first applicant’s case, the risk is increased by the fact that the army might well find out that he is a returned asylum seeker.
• The same report also contained material about arrest and detention under the emergency regulations. Under the emergency regulations, bail could be obtained if the Attorney- General did not object. If the police decided that a Tamil was not in possession of a valid identity card, he would be taken into custody and then exposed to the risk of prolonged detention, during which there might be torture. One instance of a deportee from Germany, who was deported in September 1999, was cited. This deportee had his passport taken away at the airport. Because he had no other document to establish his identity, he was rearrested in October 1999 on suspicion of being involved in subversive activities. He was remanded in prison by a magistrate.
23 The first point to be made in relation to this material is that it hardly justifies the assertion of counsel for the applicants that the material before the Tribunal was so focused on the issues of the risk of detention and torture of Tamils, and the greater risk of returning failed asylum seekers, as to require the Tribunal to deal expressly with those issues. The material to which I have referred was culled by counsel for the applicants from among a substantial amount of material about the situation in Sri Lanka. Further, a substantial amount of material, including that to which specific reference was made by counsel for the applicants, was material dealing with events and conditions in Sri Lanka up to and including the year 2000. There was no indication that the first and second applicant focused their evidence at the Tribunal hearing on 22 August 2002 on updating that material. This was because their case was primarily based on the first applicant’s claims as to his activities involving the LTTE. The Tribunal specifically rejected that case. The material to which specific reference was made was forwarded to the Tribunal by the migration agent as ‘information about the present situation in Sri Lanka to support the claims of the applicant.’ The focus of the claims made by the first applicant was considerably more specific than general information about what happened to Tamils in Sri Lanka in the years prior to 2001, and what happened to those who returned, having sought asylum elsewhere unsuccessfully.
24 The second point to be made about this material is that the Tribunal did not ignore it. The whole point of the Tribunal’s extensive reference to ‘country information’ was to support its finding that, since the ceasefire and the change of government, there had been numerous improvements, including the easing of restrictions in general, ease of travel and movement of people, a return to normalcy and an agreement that search operations and arrests would not take place under the Prevention of Terrorism Act, but that all arrests would be under the criminal code. This finding, based on that material, was directed to refuting any claim by the applicants that they would be at risk as Tamils in Sri Lanka, or that they would be at greater risk because of returning from overseas, having sought asylum unsuccessfully. Similarly, when the Tribunal made reference to the willingness of Tamils who had sought refugee status in India to return to Sri Lanka, it was demonstrating that it was considered safe for Tamils to return to Sri Lanka, even though they had sought asylum overseas. The Tribunal refuted any case that the applicants put about the danger of returning to Sri Lanka as Tamils, or as Tamils who had sought, and failed to obtain, protection visas in Australia.
The relevance of the peace process
25 The second submission by counsel for the applicants can be dealt with even more briefly. It is plain that the Tribunal’s findings as to the progress of the peace process could not be said to be an irrelevant consideration. To the extent to which there were issues before the Tribunal as to whether Tamils were at risk in Sri Lanka, and as to the degree of risk, the Tribunal was entitled to take into account the situation in Sri Lanka as it was at the time of the Tribunal’s decision. It was entitled to have regard to what it found to be the fact that the peace process had led to an amelioration of the manner in which the Sri Lankan authorities dealt with Tamil people generally. It is not the case that the Tribunal regarded the fact that peace negotiations were proceeding as in itself an answer to any claims that the applicants might have to protection in Australia pursuant to the Convention. It was the fact that the Tribunal found that the peace process had led to improved treatment of Tamils in Sri Lanka that led the Tribunal to make the findings that it did.
Conclusion
26 The issue of what was likely to happen to the applicants, if they should return to Sri Lanka, was at the very heart of the Tribunal’s consideration of the first applicant’s claims. It was an issue of fact for the Tribunal. The Tribunal found against the applicants, both on the specific claims of the first applicant and on the general situation of Tamils in Sri Lanka since the peace process had begun. On the material before it, the Tribunal was entitled so to find. It did not ignore any substantial element of the applicants’ claims. Nor did it take into account an irrelevant consideration when it considered the progress of the peace process. The applicants have therefore failed to make out the grounds on which they relied. They have failed to establish error on the part of the Tribunal. It is unnecessary to consider whether any error would have amounted to a jurisdictional error, for the purpose of taking the Tribunal’s decision outside the protection of the privative clause in s 474 of the Migration Act.
27 The application must be dismissed. No occasion appears for departure from the normal rule that costs follow the event. The applicants should therefore be ordered to pay the Minister’s costs of the proceeding.
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I certify that the preceding twenty-seven (27) numbered paragraphs are a
true copy of the Reasons for Judgment herein of the Honourable
Justice
Gray.
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Associate:
Dated: 15 September 2004
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Counsel for the Applicants:
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A Krohn
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Solicitor for the Applicants:
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KP Aravindan
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Counsel for the Respondent:
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S Moore
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Solicitor for the Respondent:
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Blake Dawson Waldron
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Date of Hearing:
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20 May 2004
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Date of Judgment:
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15 September 2004
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2004/1189.html