Wepitiya Gamage v Minister for Immigration & Multicultural Affairs [1999] FCA 1763

MIGRATION - application for order of review of decision by Refugee Review Tribunal to refuse to grant protection visa - whether failure to give adequate reasons - whether failure to set out findings on material question of fact - whether Tribunal failed to set out findings on whether applicant feared ostracism in Germany and whether that ostracism might constitute persecution for a Convention reason

Migration Act 1958 (Cth), s 476(1)(a), s 430

1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol

Minister for Immigration & Multicultural Affairs v Yusuf [1999] FCA 1681, followed

Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225, cited

Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379, cited

Kandasamy v Minister for Immigration & Multicultural Affairs [1999] FCA 1085, cited

PUSHPARANI WEPITIYA GAMAGE & ORS v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N929 OF 1999

EMMETT J

10 DECEMBER 1999

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N929 OF 1999

BETWEEN:

PUSHPARANI WEPITIYA GAMAGE First Applicant

SRI KANYA WEPITIYA GAMAGE Second Applicant

MADUSHANKANI PRIYANGIKA WEPITIYA GAMAGE Third Applicant

YOHAN PRIYASHANKA WEPITIYA GAMAGE Fourth Applicant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE: EMMETT J

DATE OF ORDER: 10 DECEMBER 1999

WHERE MADE: SYDNEY

THE COURT:

1.  Orders, pursuant to section 481(1)(b) of the Migration Act 1958, that the application by the Applicants to the Refugee Review Tribunal for review of the decision of the Respondent to refuse the grant of protection visas be referred, to the member of the Tribunal who made the decision on 3 August 1999 to confirm the decision to refuse protection visas, for further consideration on the basis of the material then before the Tribunal.

2.  Directs that that member make a finding as to:

(a) whether ostracism of the Applicants or the First Applicant might occur as claimed in the application to the Respondent; and

(b)   if so, whether such ostracism would constitute persecution for a Convention reason.

3.  Directs the member of the Tribunal to reconsider the decision of 3 August 1999 in the light of any such findings.

4.  Orders the respondent to pay the costs of the applicants.

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

N929 OF 1999

BETWEEN:

PUSHPARANI WEPITIYA GAMAGE First Applicant

SRI KANYA WEPITIYA GAMAGE Second Applicant

MADUSHANKANI PRIYANGIKA WEPITIYA GAMAGE Third Applicant

YOHAN PRIYASHANKA WEPITIYA GAMAGE Fourth Applicant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE: EMMETT J

DATE: 10 DECEMBER 1999

PLACE: SYDNEY

REASONS FOR JUDGMENT

1. The applicants are a married woman and her three children. They are citizens of Sri Lanka and they arrived in Australia on 6 October 1998. On 20 November 1998, they lodged combined applications for a protection visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 ("the Act"). On 30 November 1998, a delegate of the Minister refused to grant protection visas and, on 24 December 1998, the applicants sought review of that decision. On 3 August 1999, the Refugee Review Tribunal ("the Tribunal") affirmed the decision not to grant protection visas. The first applicant, the mother, was delivered of a fourth child in Australia in February 1999. That child is not included in the application for review.

2. When the matter was called on today, an amended application was filed without opposition. The grounds stated in the amended application are as follows.

"1. Procedures that were required by the Act to be observed in connection with the making of the Tribunal decision were not observed in that the Tribunal failed to produce a written statement in accordance with s 430.

Particulars

(1) The information before the Tribunal portrayed the LTTE as a sophisticated and well organised international terrorist organisation. The nature and extent of its operations and capacity to target people in Germany and the applicants' relatives in Sri Lanka, were important issues. The Tribunal erred by failing to make findings about the nature of the threat posed by the LTTE, including that to relatives in Sri Lanka, and by failing to give its reasons for finding that Germany would provide effective protection against such a threat.

(2) The Tribunal erred by failing to address the first applicant's fear of being ostracised in Germany and by failing to make any findings as to whether it accepted that ostracism might occur and, if so, whether it would constitute persecution for a Convention reason. These were material questions of fact upon which the Tribunal was obliged to make a finding."

2. The Tribunal's decision was not authorised by the Act or the regulations.

Particulars

The Tribunal erred by failing to address the applicant's fear of ostracism in Germany and thus, it did not apply itself to all the substantial matters which might bear on whether she was a refugee. The failure to address the fear of ostracism constitutes a constructive failure by the Tribunal to exercise its jurisdiction and means its decision is one not authorised by the Act."

3. The second ground does not, as the law presently stands, add anything to the second particular of the first ground. The first ground relies on section 476(1)(a) of the Act, which provides that it is a ground of review:

"that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision, were not observed."

4. The applicant relies on section 430(1)(c) of the Act, which provides, relevantly, that where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that sets out the findings on any material questions of fact. While there is some debate as to whether failure to comply with section 430 constitutes a ground within section 476(1)(a), I consider that I am bound by the decision of this Court in Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681. The effect of that decision is that a failure to comply with section 430 is a failure to observe a procedure required by the Act in connection with the making of a decision. Without expressing any view one way or the other about that, I propose to follow that decision.

5. The first particular in ground 1 concerns an alleged failure to make findings, concerning the nature of the threat posed by the Liberation Tigers of Tamil Eelam ("the LTTE") and failing to give reasons for finding that Germany would provide effective protection against such a threat. To explain that ground and the other ground, it is necessary to say something more about the circumstances that were before the Tribunal.

6. The first applicant was born in Sri Lanka in 1971. Following years of problems with the LTTE and Sri Lankan authorities, she went to Germany. In late 1994, Germany granted her refugee status. While in Germany, the applicant formed an association with her present husband. Before their marriage in 1995, the first applicant and her Sinhalese husband had lived in a de facto relationship, during which they had their first two children.

7. LTTE supporters and the Tamils around them never accepted the de facto relationship and harassed the first applicant by calling her horrible names. In her application to the Minister, the first applicant describes her circumstances as follows:

"I came to know my husband, Gamage, who was single at that time and while he is Sinhalese, moved with him into a unit, hoping that the LTTE supporters wouldn't get near me. Even after the change of place, I couldn't move out of the house and was dependent on Gamage to purchase the food for me. In this manner, I fell in love with Gamage and decided to get married.

Unfortunately, we couldn't register our marriage due to immigration and visa conditions. It turned out to be dangerous to be single. We had to marry according to our custom and I gave birth to my first child in 1991... After the childbirth, the LTTE supporters were convinced that I turned out to be permanently united with my husband, even though I was not legally married. They were antagonistic against my decision to live with my husband without getting legally married. According to Tamil custom, a pair cannot lead a marital life unless they and legally and customarily married to one another. The LTTE supporters and the Tamils around us never accepted the de facto relationship ... and found us as bad example for their children and to the Tamil custom. They started to harass me in particular and once again, I couldn't get out of the house on my own. The used all horrible names that a Tamil married woman would not wish to hear. I spent days and nights in the house without having anyone to mix with.

I gave birth to my second child in 1993 and was still not able to get ourselves legally registered as husband and wife. ... The LTTE members visited home [sic] during my husband's absence and forced me to get my husband to help them. I vehemently objected. Once I was pushed around the lounge by two youths and a Tamil lady who called me `prostitute'.... I didn't tell my husband while the LTTE threatened to harass my parents in Vanni if I informed my husband about their visit. After the above incident, I started to pay money to the LTTE members to keep my parents safe. It turned out to be disastrous for me to lead a normal life and begged my husband to move to another house away from the above crowd. We moved to [another address], where Sinhalese people also lived among Tamils. My husband said that I could get friendly with the Sinhalese people as well, so that I would not feel left out in future. I came to know Tamils and Sinhalese as well.

In 1995 I was legally married to my husband after immigration clearance and I felt safe to walk on the roads to the nearby shops. The Tamils from my earlier suburbs stopped calling me by foul names as above once they came to know I was married.

...

In June 1997 I came to know one of the new Tamil families who arrived in Germany from Mullaitivu. As the LTTE members were visiting them frequently to get to know the current situation at that time I also thought of speaking to know about my family members in case they met them. I helped them a lot to settle down in the new country and during the conversation I came to know that they were living in our same village near our house. When I mentioned about my brother Ramesh they said they knew him very well while the lady's brother was a classmate of Ramesh. I was so happy to learn that but when I came to know that my brother Ramesh is known as Ram and is a leader of the LTTE organisation, and that he was supervising and is in charge of transporting Tamil refugees and LTTE militants to and from India, I was devastated. I begged them not to let anyone know about it. Unfortunately it didn't last long while the same family when they came to know that I was leading a de facto marital relationship they started to keep us away, stating that we were a bad influence for their children. My brother's involvement in the LTTE was the topic among the respectable Tamils in Germany. They branded us as LTTE supporters and feared to talk to us.

The LTTE started to visit our house and the Sinhalese people completely avoided our company. In the earlier part of 1998, the LTTE members are the only ones who started to visit us and persuaded us to help them in collecting the money on their behalf."

8. At the end of the application, the first applicant said:

"I feel that I am an unfortunate woman while even though I have the permanent stay in another country, I couldn't live peacefully for marrying a Sinhalese man. I cannot blame my husband while he cannot be ill-treated for getting married to a Tamil girl. I was told that in Australia, being a multinational country, the Tamils and the Sinhalese people live in harmony and the Government of Australia would not permit or encourage racial elements to rise, dividing the country like Sri Lanka. I fear if I go back to Germany I would lose my children to the LTTE or I would be once again scorned and harassed by the Tamils, Sinhalese and the LTTE."

9. In the course of a hearing before the Tribunal, the first applicant was asked a number of questions concerning the above matters referred to in the application. I shall summarise the questions and answers:

"Q: So it wasn't just Tamils that they wanted money from; it was anyone that they thought they could get some money out of?

A: Yes.

Q: Is there anybody else that you fear in Germany?

A: After I got married ... I started living with my husband without getting married. Later, when people got to know about our marriage, no one other than the LTTE is having relationship with us.

Q: Why? You said in your statement that people were nasty and insulting when you and your husband were living together without being legally married, but that stopped after you were legally married in 1995.

A: I got married in '95. We were outcasts ... we relocated to a new place and when they discovered that we have had children outside wedlock, they thought associating with my children would spoil their childre,n and they actually kept away from us.

Q: So you say you suffered some social isolation from some people in the community who didn't like the fact that you had had some children before you were legally married, even though you were customarily married a long time before that?

A: Yes.

Q: But do you fear harm from anybody else in Germany other than the LTTE?

A: No.

Q: I just have a few questions about some of the things in your written claims which are very strange. For example, you said you could not register your marriage legally for immigration and visa reasons. Why was that?

A: With the visa, which had to be renewed every six months, they were throwing a lot of forms at us which we had to fill. The genuine situation was that without the ... visa, we couldn't have got married, and we were finding it difficult to register our marriage......

Q: But you managed to get your marriage legalised in December 1995?

A: On 4 December '95. The date was fixed some day in October.

Q: Often in the written statement there's mention of you being a Tamil from Jaffna. But you're not a Tamil from Jaffna, are you? Can you explain why your statement says that you are?

A: I was born in Colombo but my entire education was in [indistinct] which is a Tamil area.

Q: In one of your statements you said that you couldn't live peacefully in Germany because you married a Singhalese. Why was that a problem in Germany?

A: Because I'm from an educated family, where my parents are educated. There are so many Tamils in Germany, they belong to the LTTE or belong to groups which would be regarded as undesirables and they don't look favourably upon Tamils getting married to Singhalese. I had developed a hatred towards Tamils who are living - aversion towards the Tamils who are living in Germany. Actually, I like my husband because he's also an educated man and he had saved me in many situations.

Q: Apart from these minor assaults by the LTTE in 1990 when you refused to give them money and again in 1998, particularly in May 1998, have you ever been harmed?

A: They came and actually abused me verbally when I, as a Tamil, had been living out of wedlock with a Singhalese man.

Q: That was by other Tamils, was it?

A: On one occasion, a Tamil woman had entered where I live, and held me by the hair and physically assaulted me, saying that `You are a disgrace to the Tamil community, that you are living with a Singhalese man, especially out of wedlock', and she abused me verbally.

Q: Have you been harmed in any other ways, in any other situations?

A: No."

10. In the reasons of the Tribunal, observations were made concerning the meaning of "persecution". Both parties before me accepted that the observations accurately reflect the matter for the purpose of the present proceedings. The Tribunal referred to the observations made by Gummow J in Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 at 284, that the primary meaning of the term "persecution" in ordinary usage is:

"The action of persecuting or pursuing with enmity and malignity; esp the infliction of death, torture or penalties for adherence to a religious belief or an opinion of such, with a view to the repression or extirpation of it."

11. The Tribunal observed, however, that not every threat of harm or interference with a person's rights for a Convention reason constitutes being persecuted and noted that Mason CJ in Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 388 referred to "persecution" as requiring:

"Some serious punishment or penalty or some significant detriment or disadvantage."

12. The Tribunal then summarised the position as follows:

"Harm or threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group which is subjected to such harassment, amounts to persecution if done for a Convention reason. In appropriate cases it may include single acts of oppression, serious violations of human rights and measures `in disregard of' human dignity. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors."

13. The Tribunal in its reasons acknowledged the difficulties that the first applicant speaks of in her application. The Tribunal recorded that in her claims, she met her husband, a Sinhalese, and they lived together. They married according to custom but could not register their marriage for visa and immigration reasons. The Tribunal noted the claim that LTTE supporters were insulting and antagonistic because the first applicant lived with her husband without being legally married, but that the insults ceased after they legally married in 1995.

14. The Tribunal recorded the claim that LTTE supporters harassed the applicant and her husband when he refused to draft letters to government officials in Sinhalese for them and that LTTE members threatened to harass the first applicant's parents in Sri Lanka if she refused to pay money. The Tribunal noted that in 1997, to avoid that, the applicant and her family moved elsewhere in Germany, where she got to know Tamils and Sinhalese.

15. The Tribunal noted the claim that, in June 1997, the applicant got to know a Tamil family who knew her brother and his role in the LTTE and that she begged them not to tell anyone about him but, as they knew she was not legally married, they shunned her and branded her an LTTE supporter. The Tribunal also recorded the claim, that in early 1998, LTTE members started to visit the first applicant's home and Sinhalese friends shunned them.

16. The Tribunal also recorded the first applicant's claim that the LTTE warned her husband that he may lose a child to the LTTE because he married a Jaffna Tamil. The Tribunal also made reference to the Department's decision in relation to her claims to fear scorn and harassment from the Sri Lankan community and harassment by the loss of her children to the LTTE in Germany. The Tribunal noted that the Department's decision referred to independent country information that, although racially motivated acts of violence against foreigners occur, the government is committed to preventing incidents such as those feared by the applicant and that the applicant would be able to report such incidents to the German authorities and receive protection.

17. The Tribunal found that Germany is a signatory to the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol ("the Convention") and had granted the first applicant refugee status in Germany. The Tribunal accepted that the first applicant was recognised as a refugee by the German authorities and that she has consistently and confidently claimed that she has the right to re-enter Germany and to reside there permanently without restriction. She has lived in Germany for nine years, three of her children were born there and her husband has lived in Germany for twelve years on a renewable permit and is still there. The Tribunal was satisfied that the applicants can re-enter Germany and reside there without risk of refoulement to Sri Lanka.

18. The Tribunal then went on to consider the claims to fear harm from the LTTE in Germany. After indicating acceptance of a number of the claims made by the first applicant, the Tribunal rejected her most recent claim that she reported her problems with the LTTE to the local police in 1990 and 1998. The Tribunal noted that the first applicant had applied for refugee status in 1990 through a lawyer and that she used her lawyer to remedy a problem with her permanent residency in 1997.

19. The Tribunal noted that the applicant has never been in police custody in Germany and that she does not claim to fear the authorities in Germany. However, the information provided in relation to those matters was considered by the Tribunal to be useful to demonstrate the availability of state protection. The Tribunal considered, for example, that the Federal and State Governments in Germany were committed firmly to combating and preventing right wing violence. The law and the judiciary provide effective means of dealing with instances of individual abuse. The government respects the independence of the judiciary. The court system is highly developed, providing full legal protection and numerous possibilities for judicial review, and the Federal Constitutional Court has jurisdiction to hear and decide claims based on the infringement of a person's basic constitutional rights by a public authority.

20. The Tribunal accepted that Germany is a highly developed democracy providing adequate or effective protection from persecution and that it could be expected to take appropriate action against unlawful and criminal behaviour such as extortion, assault, and enforced collection of funds for the LTTE. The Tribunal referred to independent country information, which it accepted, that the Federal and State authorities in Germany take allegations of LTTE fund raising and extortion seriously, and that they investigate such allegations.

21. The Tribunal considered there was nothing to suggest that the mechanisms of protection that were available in Germany would not be available to the applicants. The Tribunal was, therefore, not satisfied that the applicant has a well-founded fear of persecution within the meaning of the Convention if she returns to Germany.

22. It is in the light of those findings that it is necessary to consider the grounds relied on by the applicant. Specifically, it is contended that the nature and extent of the operations of the LTTE and its capacity to target people in Germany and the applicants' relatives in Sri Lanka were important issues that should have been the subject of specific findings.

23. The Tribunal accepted that the applicant had been harassed by the LTTE and that some threats had been made involving her parents. I do not consider that the extent of the findings made by the Tribunal constitutes a failure to comply with the requirements of the Act. I shall not develop this question further, since it is accepted by the applicants that the facts of this case are not distinguishable from those involved in the decision of Moore J in Kandasamy v Minister for Immigration & Multicultural Affairs [1999] FCA 1085. The applicant accepts that, if I were to follow the reasoning relevantly contained in that decision, I would reject the application in so far as it is based on the first particular. No submission was made that that decision is clearly wrong such that I should decline to follow it. For that reason, and briefly because I do not consider that there has been any failure to comply with section 430 in this regard, I would reject this ground.

24. The second particular of ground 1 (repeated in ground 2) presents a more difficult question. It is clear that the Tribunal made no findings about the claims made by the applicant that are recorded in the reasons, being the claims that I have set out verbatim above. The Minister contended that any failure to do so was not a failure to comply with section 430 because, in effect, those claims to persecution had been abandoned by the first applicant by her answers to questions, which I have summarised above. The Minister contended that, in the light of those answers, the Tribunal was entitled to take the view that what had previously been claimed as serious matters of materiality to her claims for refugee status were not, in fact, material matters at all and consequently did not require any detailed findings in the reasons for decision.

25. It is clear that, in considering claims for refugee status, the concept of persecution is critical and central. The fear of harm is an essential part also of the concept of persecution. What constitutes "harm" is a question of fact and will normally be a matter for the Tribunal. It is, of course, not for this Court to make a decision on the facts. Such a decision is one for the Tribunal to make.

26. The Minister contended that once the first applicant had acknowledged that she feared no harm from any person or organisation other than the LTTE, she was in effect abandoning any claim of refugee status based upon the harassment arising by reason of her living with her husband in an unmarried state. The question is whether those claims can be characterised as serious matters in the light of the answers given by the applicant to the questions put by the Tribunal.

27. I would not read the answers given by the first applicant as being an abandonment of the assertions that were made in the application for a protection visa. The first applicant agreed with the Tribunal's characterisation of her complaint as being "the suffering of some social isolation from some people in the community who did not like the fact that she had had children before she was legally married". The question that followed the first applicant's agreement with that characterisation was

"But do you fear harm from anybody else in Germany other than the LTTE?"

She answered "No".

28. The issue is whether that question and answer should be understood as an acknowledgment by the first applicant that, although she was complaining of "the suffering of some social isolation", she did not regard that as "harm".

29. The answer to the other question as to whether or not the applicant has "been harmed in any other ways, in any other situations" might also be understood as being an acknowledgment that "the suffering of some social isolation" was not regarded by the first applicant as "harm".

30. No complaint has been made concerning the adequacy of the interpretation and one must bear in mind that the applicant must be taken to have some familiarity with the concepts of the Convention, having successfully applied for and been granted refugee status in Germany. Nevertheless, those answers were given through an interpreter and they are by no means unequivocal.

31. I have considerable reservations as to whether the matters asserted in the application would constitute "harm" such as to comprise persecution within the meaning of the Convention. However, it is not for me to make the decision. It is for the Tribunal to determine whether the claims amount to persecution within the meaning of the Convention.

32. The Tribunal in its reasons referred to the claims. However, it did not, in its reasons, indicate that it was not deciding those matters or was not making any findings in relation to those matters because of the answers that had been given. Nevertheless, I would not conclude that the Tribunal treated the answers as being an abandonment of the claims. As I have said, I have considerable reservations as to whether the claims would in fact amount to persecution. Nevertheless, I consider that they are sufficiently serious to justify the Tribunal making a finding about them. I do not regard the answers in question as constituting an abandonment of the claims. Nor do I regard the answers as constituting an acknowledgment that the claims are not serious. The claims appear to me to be sufficiently serious to warrant being dealt with by the Tribunal.

33. Accordingly, I am satisfied that there has been a failure to comply with section 430(1)(c) insofar as the Tribunal failed to set out any findings on the questions of fact as to whether ostracism might occur if the applicants were to return to Germany and whether that ostracism might constitute persecution for a Convention reason.

34. A question arises as to the relief that is appropriate in those circumstances. I do not consider, having regard to the reservations that I have indicated, that the decision should be set aside. I consider that it is more appropriate that the matter be referred to the decision maker for further consideration, pursuant to section 481(1)(b), with a view to the Tribunal, in the light of the material that was before the Tribunal, making appropriate findings as to those questions and, if so, determining whether the Tribunal itself would come to a different conclusion after considering those matters.

35. Since the applicants have been successful, the Minister should pay the applicants' costs.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated: 20 December 1999

Counsel for the Applicants: C.H.P. Colborne

Solicitor for the Applicants: Siva Logan Solicitors

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 10 December 1999

Date of Judgment: 10 December 1999