M66 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 112 (4 May 2004)

Last Updated: 12 May 2004

FEDERAL COURT OF AUSTRALIA

M66 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 112

M66 of 2002 V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NO. V 9 OF 2004

HEEREY, DOWSETT & BENNETT JJ
4 MAY 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY		V9 of 2004
BETWEEN:	M66 OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	HEEREY, DOWSETT & BENNETT JJ
DATE:	4 MAY 2004
PLACE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application for leave to appeal be refused

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
VICTORIA DISTRICT REGISTRY	V9 of 2004

BETWEEN:	M66 OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	HEEREY, DOWSETT & BENNETT JJ
DATE:	4 MAY 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT:

1 The applicant seeks leave to appeal from a decision of a judge of this Court on a remittal from the High Court of applications for constitutional writs and an injunction in relation to a decision of the Refugee Review Tribunal. The application was dismissed: Ex parte M66 of 2002 [2003] FCA 1482.

2 The judgment of the primary judge sets out in detail the nature of the applicant's claim for a protection visa and the reasons of the Tribunal in confirming the decision of a delegate of the Minister to refuse that claim. We shall only refer to these matters to the extent necessary to explain our decision on the appeal.

3 The applicant is a Sri Lankan of Tamil ethnicity. At the time of the Tribunal’s decision he was aged 29. He arrived in Australia on 10 September 1998 and on 22 October of that year lodged a protection visa application. He claimed to fear persecution from the Sri Lankan security forces on the basis of his suspected sympathy with the Liberation Tigers of Tamil Eelam (LTTE). The application for a visa was refused on 24 March 1999, and that decision was affirmed by the Tribunal on 26 April 2002.

4 The applicant’s application in the High Court was filed on 15 May 2002, and on 30 July 2002 Hayne J remitted it to the Federal Court. The decision of the primary judge dismissing the application was handed down on 18 December 2003.

5 The applicant’s case before the Tribunal and the primary judge, and on appeal, revolved around two incidents, one in 1991 and 1998, and in particular the first incident. In relation to the first incident, the applicant in a statutory declaration sworn 7 March 2002, which was before the Tribunal, referred to events which occurred at a restaurant owned by his brother. This was apparently a meeting place for Tamil people in the district and was suspected to be a meeting place of LTTE.

6 In his statutory declaration the applicant said

"Suddenly one day on or about 1 August 1991, late in the night, security forces raided the place. The raid was frightening with vehicles and several number of army officers. The raid looked they treated the place as an LTTE hideout or a ‘safehouse’ within that town. All of us present at the hotel, at that time, were arrested and taken away in vehicles for further interrogation. During the interrogation, the officers made it plain that we were nothing but LTTE agents and were operating the hotel as a safe house to facilitate movement and filtering of LTTE members into the area. We were told that our family did not have that level of income to pay such substantial amount to take the lease and the money had been advanced by LTTE contacts. All of us were assaulted and ill treated. The assault on my brother required him to attend hospital and he never recovered from the shock of the situation. We subsequently lost the entire investment in the business. After keeping me in custody for two days, I was released. I stayed around the area several more months to look after my brother and also to see the possibility of rehabilitating the business. I could not achieve this and therefore returned to my home and enrolled into computer training. My brother fled to Germany and sought asylum. His medical condition overtook him and he suffered considerably." (Emphasis Added)

7 In its reasons for decision the Tribunal, under the heading "The Applicant’s Claims", referred to that incident but did not in terms refer to his statement that "(a)ll of us were assaulted and ill-treated". Under the heading, "Findings and Reasons", the Tribunal said:

"I accept that the applicant is of Tamil ethnicity and I accept his account of where he lived, worked and studied.

I accept that the applicant was questioned in 1991 and in 1998 by the Sri Lankan authorities about his identity, individuals he associated with, where he had been and so on: independent information confirms that the Sri Lankan authorities undertake a great deal of such checking and I am satisfied that the applicant, as a young Tamil man, had the two experiences he described. Young Tamils are frequently caught up in the security authorities’ attempts to locate LTTE operatives.

Consistent information provided over several years by the Department of Foreign Affairs and Trade is that Tamil people are questioned and that if their NIC shows a birthplace or residence in the north or east of Sri Lanka they will be asked to explain their presence where they are and subjected to detention and further investigation if their explanation is not accepted. Younger Tamils without identity papers and who speak little Sinhalese and people who have come south from the war zones can be particularly vulnerable to further investigation.

In my view, being questioned about one’s identity, whereabouts at various times and the reason for being in a place is not conduct which in itself is persecutory: the Sri Lankan authorities are entitled to check in order to attempt to secure the population from terrorist attacks. Unfortunately, it is the LTTE which undertakes terrorist attacks and so it is Tamils who are likely to face questioning and investigation in this regard. The applicant has been subjected to such questioning and checking in 1991 and 1998 and was released after a short period when the authorities were satisfied that he was not associated with any LTTE activity. I do not consider that what he experienced was persecutory conduct because I do not consider that such action in respect of him involved serious harm. It is what can happen to a person once they are in custody for a longer period and subjected to further investigation which can be conduct properly regarded as persecutory: there is a high incidence of torture of detainees during interrogation and while 90 per cent of people detained are released after 48 hours, ten per cent are detained for longer periods."

8 The first ground of appeal urged before us was the argument, rejected by his Honour, that the Tribunal committed jurisdictional error because it failed to deal with the applicant’s claim that he had been assaulted and ill-treated. In assessing the validity of this contention, we bear in mind what was recently said by a Full Court of this court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 at [46] to [47] as follows:

"It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; 62 ALD 225; 180 ALR 1 at [87]–[97] ) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised "with an eye keenly attuned to error". Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked."

9 We think that, on a proper reading of the reasons, the Tribunal did consider everything that the applicant put before it. The Tribunal was not obliged to investigate further what the applicant said beyond the bare claim that he was "assaulted and ill-treated". This is particularly so in the light of a passage which occurred in the hearing when, in the context of being asked about the later incident, the following exchange took place:

Applicant: "They would have told the authorities about me because that's the kind of questioning that takes place. Who did you know? Who did you stay with? Who helped you find accommodation? And so on. Because I already have had an incident happen to me in 91, and they could have looked into that and perhaps dug up information about that."

Tribunal: "Yes, but that was nothing. That was just one day in custody and nothing, followed by nothing at all."

Applicant: "But the thing is they feel that I've helped, I've rendered them a kind of assistance for these people and I'm probably continuously doing it."

10 If it were the applicant’s case that he had suffered any serious harm (see s 91R of the Migration Act 1958 (Cth) that was an obvious opportunity to put it forward. So it is hardly surprising that the Tribunal did not specifically advert to the assertion of assault and ill treatment, having regard to the way the applicant himself dealt with those matters. It may be noted in this context also that in his initial visa application the applicant said nothing about the 1991 incident at all.

11 In a second argument related to this incident it was said that the Tribunal misconstrued the concept of persecution by holding that detention for only a short period could not amount to persecution.

12 We do not think that was a fair reading of the Tribunal’s reasons. There is perhaps some degree of ambiguity in the concluding sentences of the passage quoted above, but it is clear that the Tribunal has accepted the applicant's account of what occurred, as far as it went, and made a finding that that did not amount to persecution and did not involve serious harm. No error, let alone jurisdictional error, is disclosed.

13 An allied argument was that the Tribunal should have found that detention with "assault and ill treatment" must constitute persecution. We do not accept this argument. What does or does not constitute persecution is a question of fact, and in any event, as the primary judge pointed out, the ultimate question looks to the future and requires the decision-maker to consider whether the fear of persecution in the future upon return to Sri Lanka is well founded.

14 Finally, counsel for the applicant contended that there was jurisdictional error in failing to deal with the experience of the applicant's brother. It appears that the applicant's brother who as we have noted, was the owner of the restaurant in question at the time of the 1991 events, was hospitalised and suffered some kind of psychiatric reaction. After some time in Germany and New Zealand, it appears that he has now returned to Sri Lanka. At the highest it was put that the brother’s experience was an example of what might happen to somebody detained in Sri Lanka. But, in the light of the applicant's own evidence, we do not see that there was any error in the Tribunal’s not dealing with the brother’s experience in the way suggested.

15 Despite the careful argument of counsel for the applicant, who has put everything that could reasonably be put on his behalf, we are satisfied that no error in the reasoning of the primary judge is disclosed, and the application for leave to appeal will be refused. There was a purported notice of appeal filed earlier and, to the extent necessary, that appeal will be dismissed. The applicant must pay the respondent’s costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Heerey, Dowsett & Bennett JJ.

Associate:

Dated: 4 May 2004

Counsel for the Applicant:	A Krohn
Solicitor for the Applicant:	Ravi James & Associates
Counsel for the Respondent:	C Horan
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	4 May 2004
Date of Judgment:	4 May 2004