Findings
Section 430 of the Migration Act 1958 imposes on the Refugee Review Tribunal an obligation to state its reasons for decision:
"430(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.
(2) The Tribunal must give the applicant and the Secretary a copy of the statement prepared under subsection (1) within 14 days after the decision concerned is made.
(3) Where the Tribunal has prepared the written statement, the Tribunal must:
(a) return to the Secretary any document that the Secretary has provided in relation to the review; and
(b) give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based."
I accept the submission of counsel for the Minister that this section does not impose on the Tribunal an obligation to make findings about every factual matter mentioned in an applicant's claim. Paragraph (c) of subs (1) refers to "findings on any material questions of fact". Findings need be stated only in relation to questions that are material to the ultimate decision. I also accept that such findings as the Tribunal does make should not to be construed in an over-critical way, "with an eye keenly attuned to the perception of error": see Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287, adopted in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. On the other hand it is important that a reader be able to discern what conclusions the Tribunal reached about the issues relevant to the ultimate decision. One of the purposes of s430 is to ensure that unsuccessful applicants for a protection visa are told why their application has failed; if the reason, or one of the reasons, was that the Tribunal rejected a significant factual claim, the Tribunal must say so and indicate the factual material on which the adverse finding was based.
I do not think the Tribunal met this requirement in either of the subject cases. In order to justify that conclusion, it is necessary to refer to the Tribunal's reasons for decision. I will commence with the decision relating to Mr Paramananthan, which was given earlier (7 January 1998) than the decision in Mr Sivarasa's case (16 February 1998).
Mr Paramananthan made claims about mistreatment, at the hands of the Indian Peace Keeping Force and the Liberation Tigers of Tamil ("LTTE"), in the period before he fled the Jaffna peninsula in about April 1997. The Tribunal seems to have accepted the truthfulness of these claims, but to have regarded them as immaterial to the question whether the applicant faced a real chance of persecution if returned to Sri Lanka; presumably this was because he could reside in Colombo. I do not think the Tribunal is to be criticised for taking that approach.
Mr Paramananthan's critical claims related to events that were said to have occurred when he was en route to Colombo or after he arrived there. Mr Paramananthan said he travelled to Colombo with his mother "by the back way to Vanuniya". I gather they went "the back way" because they had no LTTE pass, which was apparently necessary if one was overtly to leave an LTTE controlled area. Mr Paramananthan claimed that, at Thandikulam, he and his mother were stopped by soldiers and separated; he was taken to Veppankulam camp where he was blindfolded and gagged, then taken to another place, interrogated and tortured. After two days, Mr Paramananthan was returned to Veppankulam camp where he was again mistreated. He was eventually released when an "agent" sent from Colombo by his mother (who had been earlier released and gone on ahead) negotiated a bribe.
In relation to this incident, the Tribunal member said:
"He made no claims that his association with the LTTE caused him to come to the notice of the authorities until this year, when in April he and his mother were attempting to leave the LTTE-held Vanni and were apprehended by the security forces on the approach to Thandikulam en route to Vavuniya. He stated that he was beaten, tortured and interrogated on this occasion, taken to Veppenkulam camp and from there 'taken to another location where I was questioned and beaten up'. A report by Hope for Human Rights, Colombo The Vavuniya Situation. January 1997 (CX22849) states that 'Screening of selected youth does take place at Thandikulam Checkpoint. It is not unusual for these people to be kept in the Thandikulam camp for up to four weeks. …there are inconsistencies in the way release procedures are being administered.' Of the Veppankulam camp, where the applicant states he was taken, the report states that 'Veppankulam Transit Camp, which had been established as a transit camp … is now also being used as a Welfare Centre.' It explains that Welfare Centres are used to hold people who had fled from Jaffna, and to be released for travel to Colombo a Jaffna Tamil must be vouched for by a person in Colombo. In the applicant's case this appears to have been arranged by an agent and he left the camp within a month of arriving at the camp, a period not unusual under the prevailing circumstances."
The reference to "this year", in the opening sentence of the passage, was obviously intended to be a reference to 1997.
The picture that emerges from the member's citations - "screening of selected youth" at Thandikulam check point and a "transit camp" at Veppankulam welfare centre - conflicts with the impression conveyed by Mr Paramananthan's claims. The Tribunal did not attempt to resolve the conflict. The member contented herself with saying that, while she had "reservations as to whether the applicant during his various periods of detention suffered mistreatment to the extent he has alleged" (she did not say why), "in the absence of contrary evidence", she was "prepared to give him the benefit of the doubt."
The next incident claimed by Mr Paramananthan occurred in Colombo. He said he was "rounded up" (apparently from the lodge where he was staying with his mother) by the police on 23 May, questioned and mistreated. He was kept in the police station for five days and released after the agent bribed a police officer. After this incident, Mr Paramananthan went into hiding in a house owned by a Muslim woman until his first attempt to leave Sri Lanka in September 1997. He reached Singapore but was returned to Colombo. On arrival he was detained at the airport, beaten and questioned, but released after payment of another bribe. Mr Paramananthan returned to the Muslim house but, after an arms cache was found in the area, he was taken into custody by police, blindfolded, beaten and interrogated. He was held from 16 September to 20 September, before being released, following intervention by the agent. The agent obtained an airline ticket and Mr Paramananthan left Sri Lanka the following day.
The Tribunal accepted Mr Paramananthan's claims of detention in May and September and that he was mistreated. The previously mentioned reservations as to the extent of Mr Paramananthan's mistreatment apparently apply, but so does the "benefit of the doubt". That means the Tribunal purported to evaluate the claim on the basis that, during the six months immediately preceding his final departure from Sri Lanka, Mr Paramananthan was on four occasions detained, three times over a period of some days. During at least three of the detentions, he was beaten and/or tortured.
Despite this factual background, the Tribunal determined there was no real chance of persecution if Mr Paramananthan was returned to Sri Lanka. The Tribunal gave two reasons. First, "there is no suggestion that such mistreatment was directed in a discriminatory way towards any particular group such as young Tamil males". I will return to that reason. The second reason was "the recent improvement in human rights referred to in the Amnesty 1996 report on Sri Lanka cited above". This was a reference to the 1996 Amnesty International Country Report for Sri Lanka supplied to the Tribunal by Mr Paramananthan's solicitor, along with other documents including the British Refugee Council's Paper Sri Lankan Tamils, the Home Office and the Forgotten War, dated February 1997. Both these documents are in evidence.
It is difficult to see how the Tribunal drew comfort from the Amnesty document. Its flavour may be gauged from the portion of the Introduction dealing with human rights abuses by government functionaries, as distinct from LTTE.
"On 7 March 1996 Kanapathipillai Satheesh Kumar, a young Tamil man originally from Jaffna, northern Sri Lanka, who had recently returned to Sri Lanka from Saudi Arabia, 'disappeared' after he was arrested by the army from his home in Colombo. His 'disappearance' coincided with an Amnesty International visit to Sri Lanka during which the delegates expressed concern about continuous human rights violations, including torture and 'disappearances' taking place in the country. Fortunately, Satheesh Kumar was released two weeks later, on 23 March. At least 60 others arrested in a similar way since April 1995, however, remain 'disappeared' in the custody of the security forces.
The People's Alliance (PA) government has repeatedly proclaimed its commitment to human rights since it came to power in August 1994 and has introduced a number of safeguards to prevent torture and 'disappearances'. However, the Amnesty International delegation found that these grave violations of human rights are continuing. Most of them have occurred in the context of renewed fighting since April 1995 between the security forces and members of the Liberation Tigers of Tamil Eelam (LTTE), the main armed Tamil opposition group fighting for an independent state in the north and east of the country.
This document reviews the human rights situation in Sri Lanka since the PA government came to power. While noting and welcoming a marked improvement in comparison with the widespread pattern of gross and systematic violations than in previous years, Amnesty International is concerned that the government is not living up to its stated commitment to human rights. Despite lobbying by local and international human rights organizations, including the Human Rights Committee and the United Nations (UN) Working Group on Enforced or Involuntary Disappearances, the government refuses to amend provisions in several laws which fall far short of international standards and continue to facilitate torture, death in custody, 'disappearances' and extrajudicial executions.
Moreover, there are signs that the government may be reneging on its commitment to bring to justice the perpetrators of past human rights violations. In June 1996, two of the three commissions of inquiry into 'disappearances' and related human rights violations (those dealing with cases in areas outside the north and east) were asked to finalise their work by the end of that months despite having heard no evidence in relation to more than half the complaints put before them. Amid widespread protest, they were given a further extension till the end of September 1996.
Impunity for those responsible for human rights violations remains a serious concern. Progress in a few court cases against members of the security forces charged in connection with 'disappearances' and extrajudicial executions is slow: as are investigations into many other cases. Relatives of tens of thousands of people who were killed or 'disappeared' over the last 13 years or so are still waiting for justice to be done.
The evidence gathered during the Amnesty International visit clearly indicates that since April 1995 the security forces have arbitrarily detained thousands of Tamil people and have been responsible for torture as well as dozens of 'disappearances' and extrajudicial executions. Several of the 'disappearances' and extrajudicial executions have been attributed to armed Tamil groups opposed to the LTTE, in particular to members of the People's Liberation Organization of Tamil Eelam (PLOTE) and Tamil Eelam Liberation Organization (TELO), who seem to be allowed to operate in some areas with almost total impunity.
Some safeguards put in place by the government in mid-1995, particularly directives issued by President Chandrika Bandaranaike Kumaratunga in July to protect the welfare of detainees, are not being fully adhered to. Moreover, in Amnesty International's view, the government, by refusing to amend the Prevention of Terrorism Act (PTA) and the Emergency Regulations (ERs), which give the security forces wide powers to arrest and detain, is not tackling the underlying causes for the continuing high incidence of torture, death in custody and 'disappearances' reported in the country." (Emphasis added)
The British Council report was based on a visit to Sri Lanka in December 1996 by two senior officers. The report deals at length with the situation of Tamils, both in their traditional areas (the north and east of the island) and in Colombo. In the chapter headed "Life in the City", the report recounts estimates that, in 1995, "over 600 Tamils were being held illegally in Colombo jails or police stations, often in overcrowded and unsatisfactory conditions with no access to their relatives or legal representation". The report went on:
"It has also been estimated that more than 800 Tamils have been held for more than four years in Magazine and Kalatura prisons outside Colombo. A year later, Tamils continued to be held indefinitely in detention. According to the Tamil MP, Joseph Pararajasingham, 76 youths have been detained by police for over three months. One human rights activist told the Refugee Council that between 500 and 1,000 Tamils are detained every month."
Under the sub-heading "Continuing abuses", the report went on:
"In June 1995, the emaciated and decomposing bodies of young Tamils began surfacing in Bolgoda lake, south of Colombo. In the weeks that followed, others mysteriously surfaced in rivers and culverts around the capital. Most of the 31 bodies had been strangled or drowned. All, whether male or female, had their heads shaven. Most of them had been killed in the Special Task Force headquarters in Colombo. One student was fortunate to escape. He had been snatched by the police opposite the railway station before being detained, where his head was shaven and he was locked up, naked and blindfolded, with three other young Tamils. Fortunately, he was released. The others were all tortured.
In November 1996, the Supreme Court judge, Mr P Ramanathan, stated that, 'the court had made a number of judicial pronouncements against the use of torture and inhuman treatment by law enforcement officers, but regardless, torture in police stations continues unabated'. This was confirmed by a number of people the Refugee Council delegation met in Colombo. One high-ranking western diplomat confirmed that 'everyone' who is taken into custody gets roughed up a bit." (Emphasis added)
After dealing with what it called "a culture of impunity", in which it contrasted Sri Lankan government assurances of improvement of human rights with the lack of action against offending officers, the report concluded with these observations:
"Despite the attempts by the government to promote human rights, the culture within the Sri Lankan security forces remains suspicious of Tamils - in particular young males, although all Tamils, whether male or female, young or old, are at risk. That Tamils should come under suspicion because of the actions of the LTTE is understandable. What is concerning is the continued use of detention without trial, and in contravention of the Emergency Regulations; of torture to extract confessions, often in a language not understood or spoken by the signatory; and of extrajudicial executions which are linked to the security forces. While there has been a systematic reduction in human rights violations, particularly against the Sinhalese population, there continues to be human rights violations in Colombo, particularly against Tamils, which the government appears to be unwilling or unable to prevent. It is for this reason that Colombo should not be assumed to be safe for Sri Lankan Tamils." (Emphasis added)
The Tribunal was not, of course, bound to accept the information or opinions contained in this report. But the report was a recent, comprehensive, and carefully compiled analysis of the position of Tamils in Sri Lanka, including Colombo. It bore directly upon the matters in relation to which Mr Paramananthan expressed fears and spoke of mistreatment that included the type of mistreatment which, the Tribunal accepted, he had suffered. The matters of fact alleged in the report were clearly material. But the Tribunal member gave no inkling as to her reaction to them. Did she accept the report to be factually correct? If not, why not? If it was factually correct, how could it be an answer to Mr Paramananthan's claim of a real fear of persecution to refer to the (earlier) Amnesty comment that abuses were not so widespread as before? There may be persecution at a particular time notwithstanding there was more widespread persecution at an earlier time. Although it was for the Tribunal to decide what finding to make about the matters stated in the British Council report, it was obliged, by s430(1)(c) of the Act, to set out its findings and, by s430(1)(d), to refer to the evidence on which they were based. The Tribunal did not do this. Apart from acknowledging its receipt, the Tribunal made no reference to the report anywhere in its reasons.
The situation is similar in relation to Mr Sivarasa. After the Tribunal hearing, but before its decision, Mr Sivarasa's representative submitted a number of documents relating to the position in Sri Lanka. The Tribunal referred to only one of them in its reasons for decision. This was a Department of Foreign Affairs and Trade ("DFAT") cable dated 15 December 1995, reporting on the situation that occurred after October 1995 LTTE attacks on oil and gas storage installations in Colombo and two November 1995 suicide attacks. The cable included these excerpts:
"Of the security measures taken by the government, it is the sweep and search (or rounding up) patrols and the resulting detentions which have raised some concern among members of the Tamil community. Most Tamils and human rights observers to whom we have spoken acknowledge that the government's response to the very serious LTTE security threat is understandable. But they claim that such operations can cause hardship to innocent Tamil people. They claim that the round up operations do not discriminate sufficiently between likely suspects and obviously innocent persons and that many innocent people are taken in and detained. However, they also acknowledge that the vast majority of persons are only held for a couple of days and then only so long as it takes for identification and bona fides to be established. We have heard almost no recent allegations of ill treatment while in detention, and this is supported by anecdotal evidence. The overall assessment of local and international human rights observers is that while these operations cause inconvenience, and possibly anxiety or even a degree of humiliation, provided they are properly conducted, they do not amount to harassment.
According to police sources, and confirmed by our other contacts, the typical profile of persons who would fall under scrutiny by security forces would be young Tamils from the north or east, but particularly those from the Jaffna Peninsula or LTTE-controlled mainland areas. The main 'tool' authorities use for identification is the national identity card (NIC). When a sweep is conducted, only Tamil people will be stopped for detailed questioning. If a person has an NIC showing a birthplace and/or residence in the north or east they will be asked to explain their presence in Colombo. If they are unable or unwilling to explain their presence in Colombo, or if their explanation is considered implausible, they will be brought to a detention centre for further questioning or to allow relatives or business contacts to establish their bona fides.
In most cases (estimated 90 per cent), people are released within a couple of days. In a small number of cases, people are charged under the Prevention of Terrorism Act (PTA), brought before a magistrate and formally remanded into custody for two weeks. In these cases, the majority are released after the two weeks expire. There are a very small number of persons who are held under the PTA for a longer period. Bail is not granted under the PTA. Under directives issued by the President, police and other security services making detentions are supposed to issue receipts to the next of kin of detainees. However, this procedure does not appear to be followed in practice.
…
In conclusion, our assessment, based on our discussions, is that while Tamils may be more affected than non-Tamils by the security measures in Colombo designed to counter the LTTE security threat, this does not amount to officially-sanctioned discrimination or harassment of Tamil people as a group. Tamil people, like anyone else continue to have the protection of the law against unlawful activities by security services. The government's demonstrated willingness to prosecute members of the security services who breach the law is important here, as is the access detained persons and their families have to the government's own human rights task force (HRTE) and to the International Committee of the Red Cross (ICRC)." (Emphasis added)
The Tribunal made no reference to the Amnesty International Country Report or British Council report, both of which had been put before it by Mr Sivarasa's representative, notwithstanding they provided more recent and more comprehensive descriptions of the situation in Sri Lanka than the DFAT cable.
I need not detail the Tribunal's findings about Mr Sivarasa's claims. Using wording identical to that which she had used in Mr Paramananthan's case, the Tribunal member expressed reservations about the extent of the mistreatment he claimed to have suffered (without explaining the reason for her reservations) but gave him "the benefit of the doubt". She thought the relative shortness of Mr Sivarasa's detentions (two days in February 1995, one week in April 1995, an unspecified period in January 1997, one day in June 1997 and two days in October 1997) indicated he "was not considered a security threat and was therefore of no real interest to the authorities". But this was not the reason she rejected his claim of well-founded fear of persecution. The Tribunal member took that course because the mistreatment was "indiscriminate cruelty" and, moreover, "the evidence suggests that such abuses are no longer as widespread as before". The Tribunal member did not cite any basis for either finding. Instead, she went on:
"Therefore, although the applicant may be subjected to detentions in the foreseeable future as he has been in the past, these detentions do not give rise to a well-founded fear of being persecuted by the authorities for reasons of race, imputed political opinion or any other Convention reason should he return to Sri Lanka."
In other words, although Mr Sivarasa might be detained, beaten and tortured in the future, as in the past, the fact that these would be acts of "indiscriminate cruelty" would mean they would not amount to persecution within the meaning of the Convention. This brings me to the second point.