VGAO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 68 (23 April 2003)

Last Updated: 23 April 2003

FEDERAL COURT OF AUSTRALIA

VGAO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 68

MIGRATION - unpersuasive factual conclusion and reasoning of the Refugee Review Tribunal - nevertheless questions of fact - no legal error.

Migration Act 1958 (Cth) part 8, ss 474, 417

Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1; (1999) 160 ALR 543

Gamaethige v Minister for Immigration and Multicultural Affairs [2001] FCA 565; (2001) 109 FCR 424.

Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396,

Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802

SAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 65

Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323

Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274; (2001) 106 FCR 426

Pollocks v Minister for Immigration and Multicultural Affairs [2001] FCA 689; (2001) 195 ALR 73

Minister for Immigration and Multicultural Affairs v W 64/01A [2003] FCAFC 12

Avesta v Minister for Immigration and Multicultural Affairs [2002] FCAFC 121

VGAO OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 556 OF 2002

WILCOX, COOPER & ALLSOP JJ

23 APRIL 2003

SYDNEY (HEARD IN MELBOURNE)

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 556 of 2002

On appeal from a Single Judge of the Federal Court of Australia

BETWEEN:	VGAO of 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	WILCOX, COOPER & ALLSOP JJ
DATE OF ORDER:	23 APRIL 2003
WHERE MADE:	SYDNEY (HEARD IN MELBOURNE)

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the costs of the respondent.

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 556 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	VGAO OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WILCOX, COOPER & ALLSOP JJ
DATE:	23 APRIL 2003
PLACE:	SYDNEY (HEARD IN MELBOURNE)

REASONS FOR JUDGMENT

WILCOX J

1 I have read in draft form the reasons for judgment of Allsop J.

2 I share Allsop J's misgivings about some of the factual findings of the Refugee Review Tribunal ("the Tribunal"). I see no implausibility in the appellant's evidence that Mr Dasanayake threatened to kill him if he rejected Mr Dasanayake's invitation for him to join the Peoples' Alliance Party. The standing of the appellant's family in the Puttalam area, which the Tribunal accepted as proved, might have provided a powerful motive for Mr Dasanayake either to enlist the appellant in his party or to remove him as a potential political opponent. Having regard to recent Sri Lankan political history, and the fate of the appellant's uncle, there seems to be no reason to reject the possibility that Mr Dasanayake was prepared to use a murder threat in his recruitment campaign.

3 Similarly, and again in agreement with Allsop J, I am critical of the Tribunal's conclusion that Mr Perera was not aware of Mr Dasanayake's murder threat. The Tribunal's reasoning proceeds on the basis that, if he had been so aware, Mr Perera would have referred to the threat in his letter of 29 October 1996. However, it seems to me most unlikely that a Member of Parliament would be prepared to include such a damaging statement about another Member of Parliament in a letter "To whom it may concern" sent to Australia for perusal by unknown government officials.

4 Nonetheless, it seems to me, the appeal must be dismissed. The matters to which I have referred concern the factual findings of the Tribunal. It cannot properly be said that the Tribunal failed to take into account any relevant matter. I am concerned at the possibility that the appellant faces a real risk to his life if returned to Sri Lanka, but there is no basis in law for intervention by the Court. The Minister has power to intervene, under s 417 of the Migration Act 1958 (Cth), but whether or not he should do so is entirely a matter for him.

5 I agree with Allsop J that the appeal should be dismissed with costs.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated: 23 April 2003

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V556 OF 2002

BETWEEN:	VGAO OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WILCOX, COOPER AND ALLSOP JJ
DATE:	23 APRIL 2003
PLACE:	SYDNEY (HEARD IN MELBOURNE)

REASONS FOR JUDGMENT

COOPER J

6 I have read the draft reasons of Allsop J. I agree with those reasons and the concerns which his Honour expresses as to the resolution of the factual issues by the Refugee Review Tribunal. For example, in focusing on what the Tribunal did not find in the letter from Mr Perera dated 29 October 1996, it failed to have regard to the general corroborative effect of the letter to support the appellant's claim that his life remained at threat in Sri Lanka because of his political activities in that country for the United National Party.

7 Such error as may have occurred in the deliberations of the Refugee Review Tribunal was of fact and made within jurisdiction. Accordingly, no demonstrable legal error has been made out on the appeal.

8 The appeal should be dismissed with costs.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper.

Associate:

Dated: 22 April 2003

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 556 of 2002

On appeal from a Single Judge of the Federal Court of Australia

BETWEEN:	VGAO of 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WILCOX, COOPER & ALLSOP JJ
DATE:	23 APRIL 2003
PLACE:	SYDNEY (HEARD IN MELBOURNE)

REASONS FOR JUDGMENT

ALLSOP J

9 The appellant, who is a citizen of Sri Lanka, arrived in Australia on 8 July 1996. On 30 June 1997 he applied for a protection visa. On 2 September 1997, a delegate of the respondent refused this request. On 29 September 1997, the appellant applied for review of that decision before the Refugee Review Tribunal (the "Tribunal"). On 27 February 2001, a decision on the appellant's application was made by the Tribunal, affirming the decision of the delegate. Judicial review was then applied for. A hearing took place before a Judge of the Court on 23 July 2002. Orders dismissing the application were made by the primary judge on 7 August 2002. The appellant appeals from that dismissal of his application. The matter falls to be dealt with under Part 8 of the Migration Act 1958 (Cth) (the Act) as it stood on 27 February 2001, before the amendments introducing the present form of s 474 and Part 8.

10 The appellant was not represented before us. Though intelligent and articulate, the appellant was unable to assist the Court with substantive submissions in support of his notice of appeal.

The Claims of the Appellant

11 The appellant was born on 26 July 1970, in Sri Lanka, to Sri Lankan parents. He and his family are Muslims.

12 The appellant speaks and writes English. His history and his claims were set out in a typed and signed statement of over five pages which accompanied his application for a protection visa. I will recount his claims substantially by reference to this statement. In this statement he claimed to leave Sri Lanka:

...because I have continuously suffered in Sri Lanka and have been persecuted too long due to political involvement and various other reasons. As described below I had to leave Sri Lanka because, if I had continued to remain there, I would have been killed and thus I came over here seeking safety so that I may live in some part of the world.

13 The appellant's family, which I take to be influential, came from the Puttalam district on the west coast in North Western Sri Lanka. They have been strong supporters of the United National Party (the "UNP"). One of the appellant's uncles (Mr M. E. H. Mohamed Ali) was a member of the Sri Lankan Parliament from 1952 to 1970 and was the High Commissioner for Sri Lanka in the Maldives from 1984 to 1989. Another uncle (Mr M. E. H. Maharoof) had been a member of Parliament since 1977 and, at times, a Minister in governments over those years. The appellant's mother's family also had a history in politics.

14 In 1979, on the death of his grandfather, the appellant's family moved to Trincomalee on the east coast in North Central Sri Lanka. The appellant was placed in school in Kandy, in Central Sri Lanka. The appellant's grandfather had lived in Trincomalee and had assets there.

15 In 1987, the family suffered damage to its assets in Trincomalee at which time many UNP supporters were killed and their property damaged. As a result of this, in 1987, the family moved to Kinniya, a few miles from Trincomalee, where the family was protected by the police.

16 Presidential elections took place in December 1988. The appellant, by then eighteen years of age, took an active political role in canvassing votes for the UNP and addressing public meetings on behalf of UNP candidates. The appellant's uncle, Mr M.E.H. Maharoof, contested the Trincomalee seat for the UNP. The appellant helped in that campaign, including controlling the finances for it.

17 After the Presidential elections there was a General Election (for Parliament) in February 1989. The appellant continued to work and campaign for Mr Maharoof. The statement went on:

...I addressed public meetings and while making the public speeches, I attacked the opposition as well as the Tamil Militants. There were so many instances where I was compelled to make speeches attacking the Tamil Militants. As a result, I got into the bad books of the Tamil Militants and they attempted to kill me.

Since they could not do anything to me, they started confiscating my father's property. We could not do anything as these properties were within the areas controlled by the Tamil Militants. Thus our family decided that it was not safe for us to live in Trincomalee and we moved to Puttalam with the police escort. Even then my father was not happy about myself staying in Puttalam and he made arrangements for me to stay in Colombo with my uncle.

Thus, the appellant said that while on the east coast of the country in Tamil areas he faced significant threats from the Tamil Tigers.

18 The appellant finished his secondary schooling and then undertook tertiary education. In due course he obtained employment.

19 In the early 1990s the appellant's father and the appellant helped non-Tamil refugees from Tamil areas in the North and North East. He said that both his father and he became popular in the Puttalam area through this benevolent activity.

20 The appellant's father became ill and he nominated the appellant to take his place in the UNP hierarchy in the area. Meanwhile, former members of the UNP, a Mr Dissanayake and a Mr Athulathmudali formed a new party and (unsuccessfully) sought to persuade the appellant's father to leave the UNP and join them in their new party.

21 In 1994 there was a general election. The appellant worked for a UNP candidate, a Mr Perera. The appellant once again canvassed votes and gave public speeches. Mr Perera won the seat, though the UNP lost the election.

22 A Presidential election took place in late 1994. Mr Dissanayake, who had returned to the UNP fold, was the UNP candidate. The appellant campaigned for him. Mr Dissanayake was killed in a bomb blast before the election. His wife took his place as the Presidential candidate. The UNP lost the election, heavily.

23 Notwithstanding this electoral loss, the UNP remained strong in the Puttalam district and the appellant remained active in public and political activity.

24 Provincial council elections were set for mid-1996. Prior to their being held, the appellant said that he was approached by a Mr Dasanayake (not Mr Dissanayake) who was a Parliamentary member for the Peoples' Alliance Party. Mr Dasanayake asked the appellant to contest the up-coming election for the Peoples' Alliance Party, rather than the UNP. Mr Dasanayake allegedly offered the appellant money as an inducement to change parties.

25 The statement of the appellant then goes on to recount the threats allegedly made by Mr Dasanayake, as well as the appellant leaving Sri Lanka and his fears, in the following terms:

...But if I refuse he threatened that he will inform the police that I had been supporting the L.T.T.E. militants financially and also while I was in Trincomalee I was helping them in various ways. Further he also threatened me that if I complained to the police or to anybody else that he will kill myself and destroy the whole family. He gave me ten days time for me to make a decision on this. When I told my mother about this she was so upset and she asked me not to divulge this information to my father as he was very sick. I left Puttalam as suggested by my mother and went and stayed with my uncle in Colombo. But on 19th March 1996, I received a telephone call at my uncle's place. The person who spoke to me introduced himself as Dasanayake's security and demanded that I should meet Dasanyake within a week. I was surprised to note as to how they came to know that I was in my uncle's house. When I informed my uncle, he wanted me to inform the police. But I was not in favour of it as I feared that the consequences would be grave. I felt that there was danger to my life and my maternal uncle suggested that its best that I should leave the country and go abroad.

According to his suggestion I moved from my uncle's place to my maternal uncle's place in Wellampitiya. From there I submitted an application for a student visa through the Australian Education Centre. My uncle made all arrangements and obtained a visa for me to travel to Australia. I came over to Australia in July, 1996. Only after I arrived here I heard that Mrs Bandaranayake has postponed the Provincial Council Election.

26 The fear of the appellant upon returning was then expressed by him in the statement in the following terms:

The public has lost confidence in the Peoples' Alliance Party and I am sure the UNP will regain position in the parliament. The Peoples' Alliance parliament member, Mr. Dasanayake was aware that I will certainly raise this matter if the UNP returns to power and he is all out to take revenge on me. He is such a powerful person that he gets things done through unknown parties and if he is determined to do harm he is sure to do it.

I did not want to claim Protection no sooner [sic] I arrived in Australia as I was under the impression that things would improve after the Provincial Election. Unfortunately it is not so as I have now been informed by my parents and friends that the People Alliance Party members are on the look out for me. As such I fear for my life.

In these circumstances I submit that my life is in danger if I return to Sri Lanka. Thus, I request that I be granted protection visa status.

27 The appellant submitted a number of letters in support of his claim. One was a letter dated 10 October 1996 from the uncle first mentioned in [5] above (Mr Mohamed Ali). The letter dealt with, amongst other things, threats from Tamil Tigers. The letter stated:

My native place is Kinniya in Trincomalee District and I permanently resided there since my birth. Due to the death threats of Tamil terrorists, I left my native place and presently residing [sic] at Chilaw Town in North Western Province. My own paddy fields and coconut estates have been confiscated by Tamil terrorists. The same losses have been incurred by my brothers also. My sons have migrated to Norway, because they supported his uncle (M. E. H. Maharoof) and in fear of terrorists.

I certify that these same threats will continue to my family and my brothers' family till an amicable settlement comes between Sri Lankan Government and Tamil terrorists.

[emphasis added]

28 Another letter, dated 5 October 1996, was from the uncle second mentioned in [5] above (Mr Maharoof). The letter stated:

I, who am a Member of Parliament for the last 19 years was the State Minister of Ports and Shipping in the last Government. I am representing Parliament from Trincomalee District. Trincomalee is one of the places that has been affected by terrorism. I have been provided security as I am a Parliament Member. This security is not given to those who left politics or who have given support to politicians.

M.E.H.M. Mowjood is my younger brother. During election period he and his son [the appellant's name] undertook some places in Trincomalee District and worked in those places. Since [the appellant] strongly involved in politics, he was getting threats when he was in Sri Lanka from terrorists and the present Government.

I certify that many who worked for me and the United National Party have been revenged both by this Government and Tamil terrorists.

This letter appeared to support a claim of fear of the Tamil Tigers which was not reflected in the appellant's statement.

29 A further letter, dated 29 October 1996, was from Mr Perera. It stated the following:

TO WHOM IT MAY CONCERN

This is to state that [the appellant's father] is an active member of the United National Party. He takes a very keen interest in social service activities During the period I was Minister of Local Government, Public Administration and Provincial Councils, and he has confessed to me that there are threats to his and his son's life and that his properties have been plundered. Complaints have been made to the inspector General of Police and the Superintendent of Police, Trincomalee. However the paddy fields and coconut lands that were forcibly taken over by the armed groups have not been returned to him.

[The appellant] worked for me strongly in 1994 election and the threat to him is more than his father.

I am well aware of the disruption of higher studies of his son [the appellant] and his daughter [name given] due to the atrocities committed against them.

The threat to his life and loss in income continues. He feels that there is no guarantee regarding his life.

As a member of parliament representing the Puttalam District since 1960, I certify that the above facts are true.

[emphasis added]

This letter does not deal specifically with a Tamil Tiger threat.

30 A declaration signed by the appellant's father and dated 29 August 1996 stated:

1. I, who am a native of Kinniya in Trincomalee District is [sic] an Arts Graduate. I was a Principal in a school and retired due to medical reasons.

2. My late father served as Chaiman, [sic] Kinniya village Council for a period of 15 years. My eldest brother M.E.H.M. Mohamed Ali served as Member of Parliament for Muthur electorate for a period of 18 years and as High Commissioner for Maldive Islands for three years. My second brother M.E.H.M. Mahroof is the Member of Parliament for Trincomalee District since 1977 to-date and was a State Minister in the last Government.

3. Although my daughter got admission at Trincomalee University College, I didn't send her due to the fact that they will kidnap her to get her brother [the appellant].

4. My properties worth several millions have been confiscated, encroached an [sic] damaged by Tamil terrorists (some documents to prove).

5. Some of my eldest brother's sons have migrated to Norway in fear of Tamil terrorists.

6. I declare that my family specially my son face threats from Tamil terrorists even though I have left Trincomalee District and presently residing at Puttalam District.

7. My son [the appellant] also facing threats from Tamil terrorists as well as the present Government as he gave co-operation and support to my brother's (Former Minister) political victory. I was called for inquiry by L.T.T.E on 20.6.90 according to their letter dated 4.6.90 at their Thambalagamam Office at 6 P.M. I did not go for the inquiry as I feared that they will detain me and ask several lakhs.

[emphasis added]

This declaration focuses on a threat to the appellant from the Tamil Tigers.

31 A further letter was from the President of the "Putlam" (sic: Puttalam) District Branch of the Sri Lankan Red Cross Society. It was in the following terms:

TO WHOM IT MAY CONCERN

[The appellant] mentioned here, is very well known to me when he was involved in Rehabilitation works for the refugees.

The Muslims of Northern Province came to Puttalam District when they were chased by Tamil Terrorists. Food, clothing and shelter were given by private persons and non-Governmental Organisations (N.G.O.) to these refugees.

In helping these refugees "National Volunteers Bureau" also worked equally like Red Cross, R.D.F. and FORUT. In this [the appellant] took a main role. He gave timber worth several thousands of rupees which belonged to him and helped the refugees to put up shelters at Kottantivu. He gave full co-operation to Vanni District Member of Parliament Mr Aboobucker to go and visit many places in Puttalam District where the refugees are. The facts mentioned by N.V.B. here are fully true. It is a refusable fact that he has death threats according to the situation prevailing in the country.

Our best wishes for his victory and prosperous future.

This letter referred in a general way to threats to the appellant.

32 Also supplied to the Tribunal before its decision was a further statement (undated) of the appellant with an enclosed letter from the appellant's father. The statement included the following:

When my dad spoke to me, he mentioned that my uncle (former Minister for Ports and Shipping) was offered some money to join the P.A. Government, but he didn't accept it, he has told my dad that he would speak about this in the parliament, but before that he and his four body guards were assassinated.

So please understand, my uncle had his body guards and was killed, but in my case, I wouldn't have anybody, so please imagine my situation. I could not even go for my mum's funeral which occurred on the 24/5/2000. My father requested me not to come. I was really upset worried and depressed but I was helpless.

33 The father's letter dated 28 November 1997 included the following:

The situation in Sri Lanka is becoming bad to worse. Murders, kidnapping and robery [sic] are increasing. No peace of mind. U.N.P. supporters are being harassed by the government. There is a big suspicion in Maharoof uncle's murder. Whether the government or L.T.T.E. had done it.

Just one week before Maharoof uncle's murder, Chandrika's government had negotiated with him to join the government, he told me that he was going to speak about this in the parliament, but the next week he was killed.

I met some of your friends, they told me that some security officers came to their houses and work places and inquired about you. They came here too and said that they have got information that you [the appellant] were having some connection with L.T.T.E, also they asked me why and when you went abroad. They were not from Puttalam, later I came to know they were from Colombo head quarters.

34 A fact not dealt with by the appellant in his statement, but conveyed to the Tribunal by his then solicitor, was that Mr Maharoof had been killed in Sri Lanka for political reasons.

35 The appellant gave evidence to the Tribunal.

The Decision of the Tribunal

36 The Tribunal dealt with the above history. It sketched the appellant's family political associations.

37 The Tribunal recorded the appellant saying the following about Mr Dasanayake and the Peoples' Alliance Party (the "PA"):

The applicant was asked why the PA would have wanted a UNP supporter to stand for the PA in the local elections. He responded that he would have won in the local elections; and that if he had been killed, another person would have replaced him and the UNP could have been blamed for his (the applicant's) death. So, whether he accepted Dasanayake's proposition or not, he would have been killed.

The applicant said that if he had reported the matter to the police, Dasanyake and the police who were with him would have known about it and harmed him.

The applicant was asked why he would continue to be of adverse interest to the PA. He responded that the PA may still want votes in the Puttalam district. It was put to him that he would have lost his influence in the area given that he had been in Australia since July 1996. He responded that his influence derived from his family history, and that his family has given its own assets to people.

The applicant's adviser submitted that Puttalam is a stronghold of the applicant's family which the PA was trying to break.

...

38 The appellant claimed that he was in danger wherever he went in Sri Lanka.

39 The Tribunal referred to the various supporting documents earlier referred to.

40 The Tribunal referred to country information.

41 The Tribunal stated the elements of the appellant's claim as follows:

The applicant claims to fear being persecuted by members or supporters of the PA on the basis of his political support for the UNP and his membership of a particular social group, namely, a particular family with a high political profile in Sri Lanka.

42 The Tribunal accepted that the appellant's family was a particular social group. It stated in this regard:

The applicant presented as an intelligent and articulate witness at the Tribunal hearing. He provided detailed, consistent evidence in his protection visa application about the political activities and positions of members of his family. Of particular significance was his evidence that two paternal uncles, Mohamed Ali and Maharoof, held leadership positions in the UNP over significant periods in the past. Maharoof's position in the UNP was also evident in the country information available to the Tribunal (see BBC, Amnesty and Inform reports). In light of this evidence, I find that the applicant's family consists of the applicant and his immediate family members; and Mohamed Ali and his immediate family members. I also find that the applicant's family has been, and continues to be, defined by its active support of the UNP by the public in the Puttalam and Trincomalee areas; and is therefore perceived by the public in those areas as a cognisable group. While I have doubts that the applicant's family is perceived in Sri Lanka as a whole as a cognisable group within that society, I am prepared to accept that it is so perceived on the basis of the high political profiles of Mohamed Ali and Maharoof in the past. I therefore accept that the applicant's family constitutes a particular social group.

43 The Tribunal accepted important aspects of the appellant's evidence and claims. It stated:

Given the history of involvement of the applicant's family in the UNP and his knowledge of details of Sri Lankan political history, such as election dates and names of well-known political figures, I accept that he was an active UNP supporter in the elections in 1988 and 1989. In particular, I accept that he was publicly seen to work for Maharoof in the general elections of February 1989 and that he was publicly known to be Maharoof's nephew in Maharoof's electorate in the Trincomalee area. Furthermore, I accept as plausible the applicant's evidence that his political activities in the general elections of February 1989, and his family relationship to Maharoof, resulted in him being at risk of harm for political reasons at the hands of the LTTE at that time; and that, consequently, he went to live with Maharoof in Colombo in mid-1989 where he would be safe.

On the basis that it was consistent and plausible, I accept the applicant's evidence that he lived in Colombo from mid-1989 until he left Sri Lanka in July 1996; that he regularly returned to Puttalam to assist his father with social work and to look after the family estates between 1992 and mid-1996; and that he engaged in political activities in support of Perera, a good friend of his father, in the 1994 general elections, and in support of Gamini Dissanayake in the 1994 presidential elections.

44 However, the Tribunal rejected all of the appellant's evidence about Mr Dasanayake, and other claims put forward by him. Though long, it is appropriate to set out the whole of the remainder of the Tribunal's reasons:

However, I do not accept the applicant's claims that Dasanayake threatened him in March 1996. I find that the evidence in support of that claim was inconsistent, implausible and unconvincing. I refer to his evidence, which I have accepted, in relation to his commitment to and public support of the UNP in the Puttalam area. I also refer to the involvement of members of his family in leadership positions in the UNP. In light of this evidence, I find it implausible that Dasanayake, a PA parliamentary member representing Puttalam (see University of Colombo LACNET report) would ask the applicant to betray his family and political allegiance to the UNP for money or for any other reason.

Furthermore, I find it implausible that a person in Dasanayake's relatively prominent political position would threaten to make an unsustainable complaint to the police that the applicant had supported the LTTE. I refer to DFAT's report (CX29237) that UNP supporters have not been accused of links with the LTTE by PA supporters; nor have they been framed on criminal charges or security breaches by PA supporters. It is also likely that Dasanyake would have anticipated that the applicant would not have been intimidated by such a complaint or threats against him given his family's involvement with the UNP; and that he would have anticipated that the applicant would have readily refuted such a complaint. For instance, the applicant could have informed the police that he and his family had left Trincomalee due to threats against them by the LTTE; and that he and his immediate family were accompanied by a "police escort" when they moved from Trincomalee to Puttalam.

Furthermore, I infer from the terms of Perera's letter of 29 October 1996 that he was not aware that the applicant had been threatened by Dasanayake. It is reasonable to expect that Perera would have made a specific reference to that threat had he known of it. Had the threat occurred, it is also reasonable to expect that the applicant or his uncle would have informed Perera of it given that Perera and Dasanayake were both MP's for the Puttalam district as at the date of the alleged threat (see University of Colombo LACNET report); that the applicant had worked for Perera in the 1994 general elections; and that the applicant's father was a "good friend" of Perera.

[emphasis added]

Furthermore, in his written statement to the Tribunal, the applicant claimed that Dasanayake was accompanied by body guards and police officers at the time of the threat and that police protection was therefore not available to him. That claim is inconsistent with his earlier claim that Dasanayake had threatened to kill the applicant and destroy his family if the applicant reported the incident to the police. The earlier claim suggests that the prospect of the applicant reporting Dasanayake's threat to the police was a significant concern to Dasanayake, and that police protection was in fact available to the applicant. It is also inconsistent with the DFAT report (CX12970), which I accept, to the effect that UNP members and supporters have equal access to the law and police protection.

Furthermore, when questioned about Dasanayke's threat at the hearing, the applicant provided unconvincing explanations as to why he would have been targeted by Dasanayake. When he was asked whether Dasanayake would have been aware that he had actually assisted a direct opponent (Perera) in the 1994 general elections, the applicant responded vaguely that Dasanayake had wanted revenge.

As I do not accept that the applicant was threatened by Dasanayake, I do not accept that Dasanayake or PA supporters have sought to harm him for political reasons or because of his family membership; I do not accept that Dasanayake's security officer telephoned him on 19 March 1996 and demanded that he meet Dasanayake; and I do not accept that the PA intended to use him to gain political support in the Puttalam area or had any other political plans in relation to him.

Furthermore, on the basis of inconsistencies in the evidence provided by the applicant, I do not accept that the police questioned his friends and relatives after he came to Australia. I refer to the letter from the applicant's father dated 28 November 1997 which asserted that the police had questioned the applicant's father and friends. I also refer to the applicant's evidence at hearing that the police had questioned his mother in August or September 1996; had questioned his aunt in Wellampitiya in October or November 1996; and had questioned his friends in October or November of 1997 or 1998. It is reasonable to expect that the applicant's father would have referred in his letter to the fact that the police had questioned the applicant's mother had they done so. Furthermore, it is reasonable to expect that the applicant's written or oral evidence would have referred to the fact that the police had questioned his father about him had they done so. Given these inconsistencies, I not [sic] prepared to attribute any evidentiary value to the vague, general assertions contained in the letter by M. H. Mohamade Aswer dated 20 December 1999 and by S. M. Mubarack dated 21 December 2000.

Furthermore, I find that the assertion in the letter from the applicant's father (written after the delegate's decision had been made) to the effect that the police suspected the applicant of LTTE connections is implausible. I again refer to DFAT's report (CX29237) that UNP supporters have not been accused of links with the LTTE, or framed on criminal charges or security breaches, by PA supporters. In addition, I accept the Inform report (above) that the LTTE was considered to be responsible for Maharoof's assassination shortly after the assassination occurred; and note that Amnesty's 1998 report was unequivocal in finding the LTTE responsible for the assassination. I therefore reject the suggestion in the letter of the applicant's father that Maharoof was assassinated by the PA government.

The applicant claimed that he feared that the LTTE would harm him at the time of his political activism in Trincomalee in relation to the elections of December 1988 and February 1989; and that this was why he went to live in Colombo with Maharoof in mid-1989. While it is implicit in his evidence that he could have been harmed by the LTTE had he not had Maharoof's security for protection, it is notable that the applicant did not expressly claim to fear the LTTE after he moved to Colombo. Furthermore, had he continued to fear the LTTE at least until 1994, it is reasonable to expect that he would not have been politically active in the elections of that year. Consequently, I do not accept that he was at risk of harm by the LTTE in 1996 as asserted by the applicant's father (by letter dated 29 August 1996), by Maharoof (by letter dated 5 October 1996) and Mohamed Ali (by letter dated 10 October 1996).

It is also reasonable to expect that the applicant would have articulated a present fear of the LTTE in either his written or oral evidence had he genuinely feared being harmed by the LTTE upon returning to Sri Lanka. I am therefore not satisfied that he genuinely fears that the LTTE may harm him upon returning to Sri Lanka.

I have not accepted the applicant's claims that he was threatened by Dasanayake in March 1996 nor that he has been at risk of harm by PA supporters for reasons of his political support for the UNP or his membership of his family as defined. Nor have I accepted the applicant's evidence that the Sri Lankan authorities have demonstrated an interest in him by questioning his friends and relatives since he travelled to Australia. Accordingly, I do not accept that the applicant has a subjective fear that he will be persecuted upon returning to Sri Lanka because of his political opinion or membership of a particular social group. Furthermore, I find that the evidence that I have accepted does not establish that the applicant has been at risk of being persecuted for those reasons. It follows that I find that the applicant does not have a well-founded fear of being persecuted for reasons of political opinion or membership of a particular social group.

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.

The Decision at First Instance

45 The primary judge dealt with the "main grounds" argued before him by the solicitor then appearing for the appellant. Some grounds were expressly abandoned, some impliedly abandoned. There was no complaint before us that the primary judge failed to deal with the issues presented to him.

46 The first matter dealt with by the primary judge concerned the question of a particular social group. The primary judge saw no error in the Tribunal's treatment of this issue, and further said the following:

...Even if, contrary to my view, the particulars of the family were inadequate, that would have no significance to the outcome of the case because it did not flow through to, or affect, the findings the Tribunal made that were adverse to the applicant. ... None of those findings had anything to do with a detailed listing of all those persons who qualified as members of the family.

47 This issue was the subject of complaint in grounds 2(a) and (b) of the notice of appeal. I agree with the reasons of the primary judge that no error of principle is revealed by the approach of the Tribunal. Also, I agree with the views of the primary judge that any error, if there was one, could not possibly prejudice the appellant given the balance of the findings of the Tribunal.

48 The next matter dealt with by the primary judge was the alleged irrationality of the Tribunal's findings in relation to Mr Dasanayake. His Honour found there to be no irrationality, but noted, even if there were such found, authority in the Full Court of this Court makes clear that such is not a ground of review: Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1; (1999) 160 ALR 543, 553; and Gamaethige v Minister for Immigration and Multicultural Affairs [2001] FCA 565; (2001) 109 FCR 424.

49 This issue was the subject of complaint in ground 2(c) in the notice of appeal, in the following terms:

(c) The learned Judge erred by failing to find that the Tribunal's decision was irrational and thus reviewable and not a "simple mistake of fact"-

(i) with respect to its contradictory finding about the appellant;

(ii) with respect to the threat by Dasanayake;

(iii) the letter from the appellant's father regarding Maharoof's assassination and that the P.A. had asked Maharoof to join the P.A. and Maharoof intended to disclose this in Parliament;

50 It might well be able to be said that there is nothing surprising, let alone "implausible" in someone in the position of Mr Dasanayake asking the appellant to betray his familial and political allegiances. The reasoning of the Tribunal appears neither cogent nor persuasive. For instance, it is not at all clear why the absence of specific reference to Mr Dasanayake by Mr Perera in his letter could not be explained by a natural and understandable reticence in a member of Parliament (Mr Perera) to have circulating what would, no doubt, be a defamatory reference to Mr Dasanayake.

51 Further, it is difficult to understand the logic behind the conclusions reached by the Tribunal about the father's letter, in particular in the light of the conclusion that the LTTE killed Mr Maharoof. It seems to me a less than persuasive basis for the rejection of the whole of the father's letter.

52 These matters of complaint are also related to paragraph 2(d) of the notice of appeal which was in the following terms:

(d) The learned Judge failed to find the Tribunal ignored relevant material when it failed to assess the appellant's fear that he would be identified as a LTTE supporter in light of Mararoof (his uncle's) assassination.

53 During oral submissions, the Court raised with Mr Fairfield, counsel for the Minister, the question whether the Tribunal had in fact finished its task. Having found that the appellant's uncle, Mr Maharoof, had been killed by the Tamil Tigers, it may be seen not to have dealt with a claim of the appellant based on a fear of harm from the Tamil Tigers.

54 Whilst I am less than persuaded by the factual conclusions drawn by the Tribunal, in particular concerning the supporting letters of Mr Perera and the appellant's father, I do not see the treatment of these factual matters as disclosing a legal basis of review under s 476 of the Act (as in force on 27 February 2001). It may well be that the view that the Tribunal took about Mr Perera's letter was mistaken. That is, that it was entirely reasonable to expect that he (Mr Perera) would omit a specific reference to the threat by Mr Dasanayake, if he knew about it. The Tribunal, having wrongly (on this hypothesis) drawn the conclusion it did about this letter, may then be seen to have viewed and considered the balance of the evidence from that perspective. That however does no more than explain how factual error occurred. It is not, in my view, the failure to take into account relevant considerations or properly undertake the jurisdictional task of review.

55 Nor do I consider that there has been a failure to complete the jurisdictional task of reviewing the claims of the appellant. It is true that the Tribunal did not specifically deal with an issue whether the appellant had a well founded fear based on fear of the Tamil Tigers. However, that matter, though broached in the supporting material and, perhaps, a logical consequence of the finding of those responsible for Mr Maharoof's death, was not the basis of the appellant's claim. His claim was based on his fear of Mr Dasanayake and the PA, not some generalised fear of the Tamil Tigers. That focus was also reflected in what was argued before the primary judge and in the terms of the notice of appeal. The claim as put was comprehensively rejected (albeit, to me, unpersuasively). The Tribunal stated that it had considered the evidence as a whole and concluded that the applicant did not have a subjective fear of persecution upon return. No legal error in my view attended those conclusions.

56 There can be, in some circumstances, a distinction sometimes not easily drawn, between failing to deal with the claims of the applicant, on the one hand, and failing to give what the Court thinks should be appropriate weight or consideration to probative and logically relevant material before the Tribunal. The former may well reveal a failure to complete the jurisdictional task, the latter may not: see generally Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396, 422-23 at [76] to [79]; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [1] and [42]; SAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 65 at [40]; Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510, 576 at [187]; and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [1], [33] to [38] and [68] to [69].

57 Whilst I am less than persuaded by the fact finding of the Tribunal, I do not think that it can be concluded that the Tribunal's task in "reviewing" and "considering" the appellant's application has miscarried: cf Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274; (2001) 106 FCR 426; Pollocks v Minister for Immigration and Multicultural Affairs [2001] FCA 689; (2001) 195 ALR 73, [23] to [34]; Minister for Immigration and Multicultural Affairs v W 64/01A [2003] FCAFC 12 at [31] to [36] and [68]; and Avesta v Minister for Immigration and Multicultural Affairs [2002] FCAFC 121 at [19].

58 Here the Tribunal dealt with the evidence and the claims put forward by the appellant. Its treatment of those matters was less than persuasive. That is a factual matter.

59 The appeal should be dismissed with costs.

I certify that the preceding fifty one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop .

Associate:

Dated: 23 April 2003

The appellant appeared in person.
Counsel for the Respondent:	C. G. Fairfield
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	5 March 2003
Date of Judgment:	23 April 2003