Anderson v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 This is an application for review of a decision of the Refugee Review Tribunal ("RRT") given on 1 February 2000. RRT affirmed the decision of the delegate of the respondent to refuse to grant a protection visa to the applicant and his family. Only the applicant husband made specific claims under the Convention Relating to the Status of Refugees 1951, and the matter was dealt with on the basis that, in respect of persons who are members of the same family unit, it is enough if one family member is a person to whom Australia has protection obligations. 2 The applicant is a citizen of Sri Lanka who arrived in Australia with his wife and daughter on 28 April 1996. 3 The applicant claimed to be a Sri Lankan Burgher integrated into the Tamil minority community, who feared persecution for reasons of race, religion, nationality, membership of a political, social group or political opinion (RD 61). The applicant emphasised (RD 62) that as far as the submissions in respect of race, religion, nationality, membership of a particular social group or political opinion are concerned, for the most part they are indistinguishable from each other. 4 There was information before RRT that the Burghers are the Christian descendants of Portuguese and Dutch colonisers of Sri Lanka. Information obtained from the Department of Foreign Affairs and Trade ("DFAT") in 1991 (RD 166) was to the following effect: "Because they are not party to the ethnic dispute, Burghers are less repeat less likely to be discriminated against or be the targets of violence than members of any other ethnic group. As long as they stay out of Tiger controlled territory and the ethnic borderlands (and the community is overwhelmingly concentrated in the urbanised south-west) Burghers face no problem at all." In 1996 DFAT reported that: "Burghers are not a particular group in which the government is interested." 5 Mr Silva, the solicitor for the applicant, accepted that Burghers as Burghers were not exposed to persecution. However, Burghers having close Tamil relatives were, in his submission, in a different position. The applicant claimed that his grandmother was a Tamil; that he had many Tamil relatives with whom he was closely associated, particularly his cousins who are suspected by the authorities as LTTE members or supporters. "This is not the normal case with the Burghers in general in Sri Lanka" (RD 113). 6 RRT rejected the applicant's contention that he is a "Tamil Burgher" or that he is perceived as being Tamil. RRT was not satisfied that the applicant has ever been of any interest to the Sri Lankan authorities, or that there is any ongoing interest in the applicant by the Sri Lankan authorities (RD 154). RRT rejected the applicant's claim that he has been "integrated into the Tamil community". At RD 155 it said: "... (RRT) cannot be satisfied that visits by Tamil relatives, briefly and as long ago as 1983 or 1984, would result in any shift in the perception either by the general public or the Sri Lankan authorities of the applicant or his family's race, from Burgher to Tamil. (RRT) finds that the applicant is a Burgher, but cannot be satisfied that he is either a 'Tamil Burgher' or a 'Tamil' and cannot be satisfied that he is perceived as one." RRT was thus not satisfied that the applicant has been imputed with an LTTE profile as a result of his race. 7 The applicant also relied upon incidents said to have taken place in 1984, July 1992 and February 1996 in support of his claim. The applicant's contentions in this respect were rejected by the Tribunal. At RD 159 the Tribunal said: "The Tribunal cannot be satisfied that the applicant has been truthful in his claims to the Tribunal. The Tribunal has further found that: the applicant concocted claims regarding his race (as a Tamil or Tamil Burgher); it cannot be satisfied that the applicant has been credible in regard to the claimed abduction in 1984, or that the abduction even actually happened; it cannot be satisfied that the (sic, he) was arrested in 1992; it cannot be satisfied that the applicant has any well-founded Convention reason fear arising out of the claimed arrest of his cousin in 1996, and finally that it cannot be satisfied of the applicant's credibility in relation to his claims of harm, and fears of harm by the LTTE. Given the significant adverse findings in (sic) credibility in regard to the matters mentioned above, the Tribunal cannot accept as credible the applicant's claim that the Sri Lankan authorities, and the LTTE, have any ongoing interest in him."