Ismail v Minister for Immigration & Multicultural Affairs [2000] FCA 194 (23 February 2000)

Last Updated: 2 March 2000

FEDERAL COURT OF AUSTRALIA

Ismail v Minister for Immigration & Multicultural Affairs [2000] FCA 194

MIGRATION - protection visa - application for review of a decision of the Refugee Review Tribunal ("the Tribunal") - whether the Tribunal observed procedures required by the Migration Act 1958 (Cth) to be observed in connection with the making of a decision - whether reasons of the Tribunal contained a contradiction or inconsistency - whether s 430 of the Migration Act 1958 (Cth) sets out a procedure which the Act requires to be observed in relation to the making of a decision - if failure to comply with s 430 whether appropriate to direct Tribunal to give adequate reasons - whether the Tribunal erred in law in concluding that the applicant could reasonably be expected to relocate to Colombo

Judiciary Act 1903 (Cth), s 39B

Migration Act 1958 (Cth), ss 430, 476, 480

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

Xu v Minister for Immigration and Multicultural Affairs [1999] FCA 1741.

Yusuf v Minister for Immigration and Multicultural Affairs [1999] FCA 1681

MOHAMED ZACKY MOHAMED ISMAIL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1285 OF 1999

EMMETT J

23 FEBRUARY 2000

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1285 OF 1999

BETWEEN:	MOHAMED ZACKY MOHAMED ISMAIL APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	23 FEBRUARY 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent's costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1285 OF 1999

BETWEEN:	MOHAMED ZACKY MOHAMED ISMAIL APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	23 FEBRUARY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The applicant is a citizen of Sri Lanka. He last arrived in Australia as a temporary resident in April 1997 and applied for a protection visa on 30 June 1997. A delegate of the Minister refused that application on 30 September 1997. An application for review was lodged with the Refugee Review Tribunal ("theTribunal") on 28 October 1997. On 7 October 1999 the Tribunal affirmed the decision not to grant a protection visa. The applicant now seeks an order of review of that decision. Three grounds were specified in the application as follows:

"1. Procedures that were required by the Migration Act 1958 to be observed in connection with the making of the Tribunal decision were not observed [s476(1)(a)].

PARTICULARS

1.1 The Tribunal failed to make a material finding of fact [s430(1)(d)] in not dealing with the applicant's claim that he had been interrogated by the LTTE in Zurich, and that they had become aware of his involvement in the Sri Lankan army.

2. The decision involved an error of law, being an error involving an incorrect interpretation of the applicable law [s476(1)(e)].

PARTICULARS

2.1 The Tribunal misinterpreted that of which it had to be satisfied in order to conclude that the applicant could reasonably be expected to relocate to Colombo.

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

PARTICULARS

3.1 There was no evidence upon which the Tribunal could conclude that the applicant `could reasonably be expected to relocate to Columbo', that being a matter on which the Tribunal had to satisfy itself according to law."

In the course of oral address, counsel for the applicant abandoned the third ground and it is therefore necessary to deal only with the first two grounds.

SECTION 476(1)(a).

2 Section 476(1)(a) specifies as a ground for review that procedures that were required by the Act or the regulations to be observed in connection with the making of the decision were not observed. The procedures relied on are the requirements of section 430(1). Section 430(1) provides as follows:

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

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

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

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

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

3 The alleged failure to comply with the requirements of section 430 is based on what is said to be a contradiction or inconsistency in the reasons of the Tribunal. The way in which the matter was put did not accord precisely with the particulars set out in the application but that has not been a matter of any comment by counsel for the Minister.

4 I should make some preliminary observations concerning the availability of this ground. There is a difference of opinion in the Court as to whether section 430 does indeed set out a procedure which the Act requires to be observed in connection with the making of a decision. The inconsistency is highlighted by the decisions of Full Courts of this Court in Yusuf v Minister for Immigration and Multicultural Affairs [1999] FCA 1681 and Xu v Minister for Immigration and Multicultural Affairs [1999] FCA 1741.

5 A bench of five Justices of this Court is shortly to be convened with a view to resolving any difference of opinion in the Court. It would be undesirable therefore for me to express a firm view one way or the other unless it is absolutely necessary for the decision in this case. Indeed, I was invited to defer deciding the case until the decision of the Full Court has been delivered, if the question is critical to this case.

6 Even if the narrower view of section 476(1)(a) and the applicability of section 430 were to be adopted, it may be that an applicant would not be without a remedy. Section 430 imposes a duty upon a Tribunal where it makes its decision on a review. It may well be that failure to discharge that duty could be the subject of orders under section 39B of the Judiciary Act 1903 (Cth).

7 Even if section 430 is within section 476(1)(a) a question might also arise as to the appropriate order to be made under section 481. It may be that it would be appropriate to do no more than direct the Tribunal to give adequate reasons or to clarify reasons that were unclear rather than to set aside a decision for which adequate reasons had not been given. A decision itself may be seen to be perfectly correct, once adequate reasons have been furnished. Because of the doubts to which I have just referred, it is necessary for me to consider the merits of the claim insofar as it is based on section 430. That requires a consideration of the reasons of the Tribunal published on 7 October 1999.

8 The applicant asserted that he was a Sri Lankan muslim and that he had joined the Sri Lankan army in January 1994. He said that he had deserted the army in December 1994, that he had paid money to a travel agent who arranged for him to travel to Switzerland and that he had spent some time in Switzerland. In his initial application, he said that he worked at Zurich International Airport and that during that period three Tamils were detained at the airport. He was taken to the Zurich office of the Liberation Tigers of Tamil Ealam ("LTTE") and asked whether he had any connection in the tip-off that resulted in the detention of those three Tamils.

9 He said that during the course of his questioning the LTTE found out that he had been in the armed forces of Sri Lanka and their suspicions increased. He said that being in Switzerland the LTTE did not do any harm to him. However he also said "but doing so won't [sic] be an issue to them". That last phrase tends to suggest that in a place other than Switzerland, and in particular Sri Lanka, the LTTE may do harm to the applicant.

10 In the course of summarising the evidence before it the Tribunal stated, inter alia, the following:

"I referred the Applicant to his evidence that he had joined the army in January 1994 and that he had been sent to the war front in June 1999...I asked him why he had joined the army voluntarily if he was opposed to killing people on a religious basis. He said that initially he had been in the Home Guard and all his friends had applied to join the army. He said that he thought that `the real army' would do good deeds. He had never thought that they would commit atrocities and rape against the people taking a religious point of view.

I put to the Applicant that he must have known that the Sri Lankan Army was involved in a particularly bitter civil war in Sri Lanka. The Applicant said that he had been aware that the war was going on but he had been given three months training. The Applicant said that only after he had gone to war had he realised that the training was insufficient. He said that they were performing their duties legally but it had become evident to him (he said again on a religious basis) that they were unleashing atrocities. The Applicant said that at the same time they had not considered him a real soldier: they had verbally abused him when addressing him in Sinhalese."

11 Later on in the reasons, the Tribunal records that it was put to the applicant that what he feared was being punished for his desertion and that it had not been particularly sensible for him to join the Army, but having joined the Army and having deserted, he was liable to prosecution for desertion. Later again the Tribunal observed that there was nothing in the evidence to suggest any reason why the applicant would have been singled out to be treated differently or punished more severely for one of the five Convention reasons as a result of his desertion.

12 The applicant is recorded as having said that he would not be able to get evidence from the army. The Tribunal indicated to him that it did not expect him to produce evidence from the army and that what was being put to him was that there was nothing in his situation that was different from that of any other army deserter, Sinhalese or muslim. In its findings, the Tribunal said that it considered that there were good reasons for believing that the applicant did not tell the truth in significant parts of his evidence. The Tribunal found it difficult to believe that anyone would have voluntarily joined the army in Sri Lanka if opposed on a religious basis to killing innocent civilians, as the applicant claimed to be.

13 The Tribunal observed that the applicant is not a stupid man, that he had completed his `A level' examinations. The Tribunal considered that the applicant was being disingenuous in claiming that he thought the army would do good deeds. The ultimate conclusion of the Tribunal was expressed in the following terms, so far as is presently relevant:

"However since, for reasons given above, I do not accept that the Applicant joined the army, it follows that I do not accept that the Applicant genuinely fears that he will be harmed by the LTTE for this reason if he returns to Sri Lanka."

14 That statement is quite unequivocal. It is a clear finding by the Tribunal that it did not believe the applicant's assertions that he had joined the army. The thrust of the complaint on behalf of the applicant, however, is that when one looks for "the reasons given above" some doubt is cast on that conclusion. The reasons include the following passages:

"Having regard to those aspects of the Applicant's evidence which I consider to be implausible I do not accept that the Applicant is telling the truth about his reasons for having left Sri Lanka or his experiences when he returned there in February 1997. I do not accept that the Applicant joined the army because he thought that `the real army' would do good deeds, nor that he deserted from the army because he was forced to witness or participate in atrocities which violated human rights and his religious beliefs. I do not accept that he was arrested as an army deserter on his return to Sri Lanka in February 1997, detained for almost 40 days without trial and severely beaten. I consider that the Applicant has fabricated these claims for the purposes of his application for a protection visa."

15 There are two possible ways of reading that passage. One is that the Tribunal did not accept any of the claims made by the applicant that he had joined the army and that he had deserted from the army. Another possible reading is that the Tribunal did not accept the reasons advanced on behalf of the applicant for joining the army and deserting from the army. If the true reading is rejection of the reasons, an acceptance of the joinder and desertion would be implicit

16 However, the observations of the Tribunal to which I have already referred indicate that the Tribunal's reasoning is directed to rejecting the assertion of joining the army and desertion from the army. The observation that it would be difficult to believe that anyone would voluntarily have joined the army in Sri Lanka if opposed on a religious basis to killing innocent civilians, coupled with the acknowledgment that the applicant is not unintelligent, seems to me to be a fairly clear statement by the Tribunal that it accepted the applicant's views that he is opposed on a religious basis to killing innocent civilians but was not prepared to accept that a man with those views would voluntarily join the army.

17 The reasons continue as follows:

"Furthermore, even if I were to accept that the Applicant is in fact an army deserter, as he claims, I would not accept that this brings him within the definition of a refugee for the purpose of the Refugees Convention."

That passage is also consistent with a view being held by the Tribunal that the applicant may well never have been an army deserter. It is certainly not a finding that the applicant had been in the army.

18 The reasons then contain the following passage:

"The Applicant once again suggested that he would be singled out or punished more harshly because he is a Muslim but as I have said his claims that Muslims are discriminated against in this fashion are not consistent with the information available to me which indicates that there are many Muslims in the army and that relations between the Muslim community and the army are good...Likewise, although the Applicant claimed that he had refused to take part in killing innocent civilians because this was against his religious beliefs, this is not a case of conscientious objection to compulsory military service: the Applicant joined the army voluntarily. There is nothing in the evidence before me to suggest that he would be treated differently from any other army deserter, notwithstanding that he claims that his desertion was prompted by his religious beliefs and not by other, baser motives such as cowardice. Even if I were to accept that the Applicant faced prosecution for desertion if he returned to Sri Lanka, therefore, I would not accept that he would be treated any differently, for a Convention reason, from any other army deserter."

19 In that passage the Tribunal is again clearly not making a finding that the applicant was in the army or was a deserter. The possibility of the applicant being a deserter is stated in a hypothetical vein rather than as fact. I consider that when one reads the passages to which attention was drawn on behalf of the applicant they do not detract in any way from the unequivocal conclusion stated in the passage, which I first cited, that the Tribunal did not accept that the applicant joined the army. In other words, the claims that were fabricated were the claims to have joined the army and the claims to have deserted for reasons that the applicant asserted.

20 In the circumstances I do not consider that this ground of impugning the reasons is made out. I am not satisfied that there has been a failure to comply with section 430. In any event, it seems to me that, even if there were some equivocation in the Tribunal's reasoning, the Tribunal is quite clearly saying either the applicant was never in the army and therefore there is no reason for him to be persecuted by the LTTE or even if he were in the army and the LTTE might endeavour to harm him if he returns to Sri Lanka, the possibility of being arrested for desertion is not of itself persecution for a Convention reason.

SECTION 476(1)(e)

21 It was then put on behalf of the applicant, however, that if there were a finding or at least a possibility of a finding that the applicant had in fact joined the army and therefore might be the object of harm at the hands of the LTTE, the Tribunal had not adequately dealt with those fears. It is in that context that the reference to the incident in Switzerland becomes more significant. The assertion is that the applicant had reason to fear the LTTE if he returned to Sri Lanka.

22 The Tribunal did in fact consider that possibility and it is the consideration of that possibility that gives rise to the second ground. The Tribunal in its reasons recorded that it was put to the applicant that, even if he feared reprisals from the LTTE in his home area, he could reasonably be expected to re-locate to Colombo. The applicant said that if went to Colombo he would be arrested by the army and if he returned to his home the "grama sevaka", or village head man, would know. In its reasons the Tribunal further recorded:

"He said that the news had spread all over his village that he had joined the army and had deserted. The Applicant said that if he were required to return to Sri Lanka he would commit suicide and would die here. It would be better to die here without undergoing any torture."

23 In its conclusion the Tribunal said as follows:

"Moreover, as I indicated to the Applicant in the course of the hearing before me, even if I were to accept that he genuinely feared reprisals from the LTTE in his home area I would consider that it would be reasonable to expect him to relocate to Colombo. The Applicant said that if went to Colombo he would be arrested by the army but for reasons given above I do not accept that this would be the case and even if it were to be the case I would not accept that his arrest as an army deserter would amount to persecution for a Convention reason."

24 I should observe first that the language of that passage confirms the unequivocal finding made by the Tribunal that it was not satisfied that the applicant had joined the army. The complaint, however, based on acceptance of the contention that the reasons are equivocal, is that the Tribunal did not give adequate consideration to the two questions that arise in relation to the possibility of relocation.

25 The first is whether an applicant could, in fact, relocate to another area. The second, is whether he could reasonably be expected to do so. That second question is an important one, because notwithstanding that real protection from persecution may be available elsewhere within the country of nationality, a person's fear of persecution in relation to that country will remain well founded with respect to the country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person. In the context of refugee law, the practical realities facing a person who claims to be a refugee, must be carefully considered (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 442). I do not consider that there is any substance in the ground advanced on behalf of the applicant in this regard. The applicant was given the opportunity of explaining why, if at all, it would not be reasonable to relocate to Columbo. One could imagine any number of reasons that might have been advanced. The only one that was advanced by the applicant was that he feared arrest by the army. Of course, the primary answer to that is the Tribunal's finding that the applicant had not been in the army and therefore had not deserted, and therefore would not be at risk of arrest. However, even if, on the hypothesis upon which I am dealing with this question, there was a possibility that the Tribunal was wrong in that conclusion, arrest for desertion would not amount to persecution for a convention reason.

26 The Tribunal made clear findings that there was no reason to suspect that the applicant would be singled out, or punished more harshly, because he is a muslim, or for any other convention reason in being dealt with as a deserter. If his only fear was arrest by the army for desertion then that is not, as the Tribunal concluded, persecution for a convention reason. It follows, in my view, that the second ground has not been made out.

27 It follows that I would order that the application be dismissed and the applicant to pay the respondent's costs.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated: 1 March 2000

Counsel for the Applicant:	C Jackson
Solicitor for the Applicant:	Siva Logan
Counsel for the Respondent:	R M Henderson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	23 February 2000
Date of Judgment:	23 February 2000