Nizam v Minister for Immigration & Multicultural Affairs [2000] FCA 1199 (28 July 2000)

Last Updated: 30 August 2000

FEDERAL COURT OF AUSTRALIA

Nizam v Minister for Immigration & Multicultural Affairs [2000] FCA 1199

MOHAMED HANIFFA MOHAMED NIZAM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V51 OF 2000

NORTH J

28 JULY 2000

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 51 OF 2000

BETWEEN:	MOHAMED HANIFFA MOHAMED NIZAM APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	NORTH J
DATE OF ORDER:	28 JULY 2000
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent's costs of and incidental to the

application.

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 51 OF 2000

BETWEEN:	MOHAMED HANIFFA MOHAMED NIZAM APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	NORTH J
DATE:	28 JULY 2000
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

INTRODUCTION

1 The applicant is a Muslim national of Sri Lanka, born on 24 August 1956. He and his wife and two children arrived in Australia on 23 January 1996. On 17 June 1996 he applied for the grant of a protection visa. On 18 June 1997 a delegate of the Minister for Immigration and Multicultural Affairs, the respondent, refused the applicant and his family the protection visas sought. On 26 June 1997 the applicant applied to the Refugee Review Tribunal (the Tribunal) for a review of the decision to refuse him and his family the protection visas. On 14 January 2000 the Tribunal determined to affirm the decision of the delegate. On 10 February 2000 the applicant applied to this Court for a review of the decision of the Tribunal.

BACKGROUND FACTS AND CLAIMS

2 Mr Krohn appeared for the applicant. He provided a concise and useful summary of the claims made by the applicant to the Tribunal as follows.

3 The claim of the applicant depended on the fundamental proposition that the applicant was a founding member of the Eelam People's Revolutionary Liberation Front, the EPRLF. In 1990 there was extreme violence between the EPRLF and the LTTE which are competing proponents of Tamil independence in Sri Lanka. The LTTE engaged in a campaign of violence against members and office holders of the rival EPRLF. The applicant claimed that he and his wife were detained by the LTTE as a result of the applicant's involvement with the EPRLF. The applicant's claim was that he was detained for a couple of months at the time when his wife was pregnant.

4 He claimed that he was given the option of working for the LTTE or face death. He accepted the option of working for the LTTE, and was sent to the eastern province to develop links between the LTTE and the Muslim community between May 1990 and November 1995. In November 1995 when it became clear that the LTTE intended to involve its political wing in training for fighting, the applicant determined that he had to leave Sri Lanka. Thus the central claim by the applicant was that he would be in danger from the LTTE were he to return to Sri Lanka as a result of his prior dealings with the EPRLF.

5 The essential finding of the Tribunal was:

"I do not accept that the applicant was ever a member of the EPRLF or in any high profile position in any other organisation in opposition to the LTTE."

6 The decision of the Tribunal was comprehensive and carefully reasoned. It is, however, unnecessary to set out in elaborate detail the course of reasoning of the Tribunal because the grounds of review are confined. Counsel should be congratulated for so confining the arguments because it is clear that the decision was not amenable to any other criticism than the limited criticism ultimately put.

THE DECISION OF THE TRIBUNAL

7 Only two grounds of review were pressed. These were interrelated. In order to understand them, it is necessary to refer to a passage in the decision of the Tribunal. In so doing I do not follow the usual practice of outlining the whole of the written decision which led up to the final section headed Findings and Reasons. I avoid that process because it would be to take more time than is necessary to dispose of the narrow ground of appeal. However, I note that the decision carefully analysed the law applicable, the claims and the evidence made by the applicant, and the country information before dealing with the findings and reasons.

8 The particular passage around which the grounds of appeal were argued is as follows:

"I do not accept, however, that the applicant was even a member of the EPRLF. This is because, despite his written claims of being a member of the EPRLF and at hearing claiming to have been an office-bearer of the local EPRLF, he could not remember the full name of the group, nor could he articulate what sort of policies the group actually stood for. Further, he claimed he campaigned for the EPRLF and solicited support for the north eastern provincial council elections in this time. Given this level of claimed involvement, the applicant should be aware of the full name of the group, and at least the ideology of the party. I do not accept that a person who had been an active member of an organisation, as the applicant claimed, would have such little knowledge of these matters.

I accept that in the period of late 1989 and early 1990, there was a great deal of fighting between the LTTE and the EPRLF and the Tamil National Army as each tried to wipe out its rivals, following the gradual withdrawal from the north and east of the IPKF, which was completed in March 1990. Country information shows that the EPRLF was in control of the north-eastern council until June 1990, when, after renewed fighting with the LTTE, the government dissolved this provisional council (despite strong protests from the EPRLF). Clear country information, supported by the applicant's own statement, is that in the first six months of 1990 the LTTE had a deliberate policy of murdering the EPRLF leadership to wipe them out so as to ensure that no other Tamil group could rival them for support from the local Tamil population. Many EPRLF members fled the area, and an LTTE execution squad murdered 13 EPRLF leaders in Madras in India in June 1990. This is confirmed, for example, by K M de Silva in his History of Sri Lanka, pp976-977, the Far East and Australasia, 1996, Europa Yearbook, 27ed.

I can accept that the applicant was fearful of the LTTE when it started to infiltrate further areas of the north and east in this time, as were many of the civilian population. However, I do not accept that the applicant was sought out by the LTTE, and he and his wife arrested and held by them for reason of any political activities he claimed to have undertaken. Had the applicant indeed been active in the way he described, I consider that he would have been executed by the LTTE, as they did to any of those who were senior members of the EPRLF or considered a traitor to their cause. The LTTE is an authoritarian and murderous organisation which rules the people and areas it controls ruthlessly. The applicant's own adviser has referred to information to this effect. (See also pages 12, 16, and 17 of this decision.)

I do not accept that, if the applicant had been sought by them for any real or imputed political opinion, they would have let him live merely because his wife was pregnant, based on country information outlined at page 12, and the country information provided by the applicant, which attests to the LTTE's ruthlessness and indiscriminate and targetted killings of civilians and others considered to be traitors. I do not consider it plausible that the LTTE would want the applicant to work for them at this time to win over Moslems to their cause and establish links with Eastern province Muslims. As outlined at pages 15-16 of this decision, the LTTE specifically made a decision to expel Moslems from the north, and massacred hundreds of Muslims in the East, in that year, as part of a policy at that time of trying to drive Muslims out and secure the north and the east for Tamils only. (See pages 14-16). I find it implausible, therefore, that the applicant would be sought by the LTTE to try to influence Moslems at this stage to support them, in contradiction to their overall policy.

Country information indicates that Moslems are a distinct group from Tamils, and that there has been strong antipathy by the Moslem community at large for the LTTE. I can accept that, in certain circumstances, a Moslem might engage in trade with the LTTE for financial gain, or there may be an exceptional case where a Moslem had political sympathy with the LTTE. However, the applicant has claimed neither of these things. Indeed, he said that he never sympathised with the LTTE.

In these circumstances I find it implausible that, if the applicant had worked unwillingly for the LTTE, he would not have found a way to leave the area in the years he said he worked for them, given that he said he had two sets of documents. I do not accept that he would continue serving them because they had saved him and his family and provided shelter, as previously stated the LTTE have demonstrated no compunction in killing civilians or particular ethnic groups or their own people. Such an attitude would not inspire loyalty from a person who said he had no sympathy with their cause in the first place.

I further consider it implausible that he would have been shifted to, in his own words, a Tamil area in the north by the LTTE in [the] mid 1990s because he was unpopular with the Muslims, given that he claimed that the LTTE had specifically wanted to use him so that he could win over Muslims.

Given the above, I do not accept that the applicant was ever a member of the EPRLF or in any high profile position in any other organisation in opposition to the LTTE, nor do I accept that he and his wife were detained by the LTTE because of this, and that he was released only because he agreed to work for the LTTE political wing. Accordingly, I do not accept that he was sent to areas of the north eastern provinces to gather support for the LTTE from the Muslim community, and that later he had to move to a Tamil area because he was no longer popular with the Muslims. Nor do I accept that he was required to become involved in military activities on behalf of the LTTE, given that I do not accept he was ever a member of any other part of the LTTE. Based on the above, I also do not accept that he is in danger now from the Sri Lankan government because his name is registered as a supporter of the LTTE, and nor do I consider he would be required to become an informer for the Sri Lankan government, as I do not accept he would have any knowledge through any activity with the LTTE which would be sought by the authorities." (Underlining added)

GROUND OF REVIEW AND REASONING

9 The first ground of review is expressed in paragraph 5(a) of the amended application as follows:

"The decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision. Whether or not the error appears on the record of the decision:

(a) the Tribunal erred in not applying the test required by law [of]

whether the applicant had a well-founded fear of persecution

but instead applying a test of some other degree of probability

shown by repeated use of the terms "plausible" and

"implausible" [...] in rejecting crucial elements of the applicant's

claims of involvement with, detention and intimidation by, and

fear of the EPRLF, LTTE and Sri Lankan government."

10 There are four occasions in the passage set out in par 7 of these reasons in which the Tribunal refers to its views by reference to the words "plausible" or "implausible" and in one case by reference to the words "completely implausible". In the extracted passage those instances are underlined.

11 Mr Krohn accepted that the Tribunal correctly set out the law applying to the task before the Tribunal as follows:

"[A]n applicant's fear of persecution for a Convention reason must be a `well-founded fear'. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a `well-founded fear' of persecution under the Convention if they have genuine fear founded upon a `real chance' of persecution for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or if it is mere speculation. A `real chance' is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent."

12 Mr Krohn contended that the words "plausible" and "implausible" are vague and indeterminate statements of probability and their use may indicate that the Tribunal approached the evidence before it by assessing competing probabilities. If it had done so it would have failed to make the assessment necessary in determining whether a fear is well founded by determining whether there is a real chance of persecution. Mr Krohn particularly pointed to the second use of the expression of plausibility, namely, "I find it completely implausible". He contended that that form of expression indicated a degree of rejection greater than the other instances of the use of the expression and consequently the danger that, on those other occasions at least, the Tribunal applied, in effect, too high a test on the existence of the fear of persecution.

13 In my view there are a number of reasons why this ground of review cannot be sustained. First, the determination of the Tribunal is made in the context of its statement of the law which the applicant accepts as correct. The Tribunal was therefore in no doubt that it had to assess a real chance of persecution and that that assessment might involve something less than a 50 per cent chance. It is not likely that the Tribunal, having stated the test correctly, then proceeded to act contrary to the statement of principle which it made.

14 Second, the context in which the expressions are used make it clear that the Tribunal was simply using a form of expression intended to indicate that it did not accept particular parts of the evidence. "Plausible" and "implausible" were used as simple alternatives to "accept" or "do not accept". This is clear from a fair reading of the entirety of the passage extracted. There is an indiscriminate use of the expressions "I do not accept", "I can accept", "I do not consider it plausible", and "I consider it implausible".

15 Third, if there was any doubt that the expressions relating to plausibility were used as an alternative to expressing an acceptance or rejection of evidence, then that doubt is allayed by the concluding paragraph of the extract. In that paragraph the very subject matters about which the plausibility expressions were used are determined using the language of non-acceptance of the particular piece of evidence or proposition therein questioned. Mr Krohn placed emphasis on the opening words of that final paragraph, namely, "Given the above", and submitted that the conclusions expressed in the final paragraph could be seen as having no better basis than the basis set out in the preceding paragraphs. In other words, the conclusions expressed in the final paragraph were dependent upon the approach reflected in the paragraphs using the expression concerning plausibility.

16 Again, this reading of the concluding paragraph is not persuasive. Rather, the concluding paragraph expresses firm conclusions in language of acceptance which same acceptance was conveyed by the alternative expressions of plausibility in the preceding paragraphs.

17 Mr Krohn also argued that the variations in expression were significant in this case because the whole decision of the Tribunal turned upon whether the Tribunal believed the claim of the applicant. While the Court must be astute not to examine reasons of the Tribunal overzealously with an eye towards detecting error, nonetheless, Mr Krohn submitted, where the form of expression goes to the sole basis upon which the decision was made, a more rigorous approach may be justified. Even if such an approach were justified, the plain meaning of the Tribunal leaves no doubt that it was concerned to assess the real chance of persecution in accordance with the principle it stated.

18 In any event, the criticism which is made by the applicant of four forms of expression relate to the assessment of particular pieces of evidence which led to an overall conclusion rejecting the real chance of persecution. It may be that such concentration or focus was misplaced. The ultimate question which the Tribunal had to consider was whether there was a real chance of persecution. That is a different question to whether there was a real chance that each of the impugned facts which were found, existed. The argument under this ground was arguably directed to the latter issue.

19 I turn now to the second ground of review which is stated in paragraph 5(b) of the amended application as follows:

"The Tribunal erred in law in failing to consider whether there was a real chance the applicant would suffer persecution because the Tribunal may have been wrong in its rejection of crucial elements of the applicant's claims mentioned in paragraph (a) above."

20 The circumstances in which the Tribunal is bound to consider "What if I am wrong?" were addressed in the Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at par 67 as follows:

"In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT's own reasons. If a fair reading of the reasons as a whole shows that the RRT itself had `no real doubt' (to use the language in Guo) that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong. Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT's own findings to be pursued. A `fair reading' of the reasons incorporates the principle that the RRT's reasons should receive a `beneficial construction' and should not be `construed minutely and finely with an eye keenly attuned to the perception of error': Wu Shan Liang, at 271-272, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, at 287. Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT's failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution."

21 Thus the Tribunal is only required to address the question "What if I am wrong?" if, on a fair reading of its reasons, it demonstrated a real doubt that its findings on material questions of fact were correct. Mr Krohn contended that the language of plausibility used in the four instances referred to were expressions of a degree of lack of confidence in the conclusion which bound the Tribunal to ask "What if I am wrong?" It follows from what I have said in relation to the first ground that the Tribunal demonstrated no lack of confidence in its findings of fact contained in the relevant passages. Consequently no occasion arose for the Tribunal to address the question "What if I am wrong?"

22 The other grounds stated in the amended application were either not pressed (ground 6) or seen not to have any practical benefit to the applicant (ground 1) and hence not the subject of any argument.

CONCLUSION

23 For these reasons the applicant's grounds for review are not made out, and the application must fail.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated: 28 August 2000

Counsel for the Applicant:	Mr Krohn
Solicitor for the Applicant:	Mano Associates
Counsel for the Respondent:	Mr Gray
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	28 July 2000
Date of Judgment:	28 July 2000