Applicant NAKB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of Barnes FM dismissing an application for review of a decision of the Refugee Review Tribunal ("the RRT") which in turn affirmed a decision of a Ministerial delegate not to grant the first appellant ("the appellant") and his family a protection visa. 2 The principal ground for the appeal as set out in the Amended Application filed by consent is that the RRT failed to address the appellant's claim that if he was to return to Sri Lanka, he would be arrested for questioning and be persecuted by Sri Lankan security forces on suspicion of having LTTE connections, following his arrest in Colombo, when he was in the company of a relative who was also a LTTE member. There is no dispute that this submission was raised before the RRT for its consideration. The respondent ("the Minister") submits that on a fair reading of the reasons for decision of the RRT, the question was addressed because it rejected the claim that the appellant had been arrested, detained and treated as claimed by him and that it went on to decide, in the alternative, that even if he had been arrested, the incident was a "one off" incident and that there was no real chance that it would therefore be repeated and consequently there was no real chance of persecution from security forces if the appellant is returned to a government controlled area of Sri Lanka.

the RRT decision 3 The reasons for decision of the RRT record that the appellant is a forty-five year old Tamil born in the Jaffna Peninsula. His wife who is also a Tamil is aged thirty-nine and they have two young daughters. He is a qualified engineer and worked in Colombo from 1988 to 1993 and between 1993 and January 2000 he worked in Brunei. 4 The appellant's claim was that in 1998 he was staying with his family in a lodge in Colombo and found that one of his cousin's sons was also staying at the same lodge. The son told him that he had come to Colombo to obtain a passport and was trying to go abroad. The room which his family occupied in the lodge was small to accommodate the whole family. His cousin's son offered to let him sleep in his room. On 19 December 1998, fortuitously, the police and the army surrounded the lodge. The rooms were checked and he was asked to show his identity card. When the police saw the cousin's son's identity card they immediately handcuffed him. The police also arrested the appellant and took him to the police station and on the way he was assaulted by them and later detained in a cell. He claims that he was beaten with a wooden club and continuously threatened. The appellant was told that the police knew that his cousin's son was a LTTE member and accused him of also having LTTE connections. He was kept for two days and was mentally and physically tortured, severely beaten and questioned. He said that on 20 December 1998 two policemen entered into the cell and took his personal details, photograph and finger prints. They asked him his real name and his LTTE member name and the year he joined the LTTE. He did not have any identification documents with him when arrested. He claimed that he was eventually released after his wife paid a bribe. He said that he then left Sri Lanka as soon as possible but his wife remained there to see her parents who were travelling from Jaffna. 5 The RRT noted that the appellant's adviser submitted that there was a real chance that the appellant would be persecuted both because he is a Tamil male from Jaffna and has an imputed opinion of support for the LTTE. It is the latter ground with which the appeal is concerned. 6 After the RRT hearing the appellant provided a further statement containing details of his claims about his treatment at the police station in 1998. 7 In its findings and reasons the RRT noted that the appellant returned to Colombo in 1996 without difficulties and that there was no suggestion that he ever had difficulties in Colombo before 1998. 8 The relevant parts of the RRT's reasons for present purposes are as follows: "The applicant has claimed one occasion where he has had difficulties. This is alleged to have occurred on 19 December 1998 and the applicant has provided significant detail about the mistreatment he has alleged occurred to him. The problem the Tribunal has with this claim is that at the time of arrest the applicant would have been able to show he was holidaying in Sri Lanka after working in Brunei. In addition his wife and children were in a nearby room and could vouch for him. In the Tribunal's view it makes no sense for the security forces to mistreat him in the serious way claimed when he obviously could not tell them anything about the operations of the LTTE in Sri Lanka. Further the applicant is not a member of the profile of those of interest to the security forces. He is not a young Tamil recently arrived from the north and east and had the ready ability to establish this. The applicant in support of this claim of detention and mistreatment has provided two medical reports. However whilst they indicate that the applicant has ongoing shoulder problems they do not convince the Tribunal these problems occurred in the way claimed. Rather given the above matters about the applicant's profile and his history the Tribunal is not satisfied that the applicant was arrested, detained and treated as claimed. If the Tribunal is correct in this finding the applicant has never faced serious harm in Sri Lanka in the past. Given his age, his education and that he is not from the profile of those considered of interest the Tribunal considers that if he now returned there is no real chance that he will face harm serious enough to amount to persecution from the security forces. However if the Tribunal is wrong about rejecting his arrest in 1998 and the applicant was unlucky enough to have been arrested on this occasion the question remains whether he will face a real chance of persecution should he now return. If he was mistreated in the way claimed particularly as set out in his recent statement, this treatment would be serious enough to amount to persecution. In this regard the Tribunal notes that the applicant has worked either in Colombo or in problem areas for periods of time without difficulties. In the Tribunal's view such ability to live and work in Trincomalee and in Mullaitivu without significant difficulties from the security forces and without being considered to be a risk as an LTTE operative, provides a much more certain guide to his future in Sri Lanka than one unlucky incident during one holiday. Indeed on the applicant's own account had he been in a room with his wife he would not have been suspected of anything. Given these matters the Tribunal, even if the applicant was detained and mistreated as claimed in 1998, views it as a one off incident. Although the Tribunal accepts that a one off incident can indicate a real chance of persecution on return, in this case when the entire history of the applicant is considered the Tribunal concludes that there is no real chance this one off incident will be repeated. As a result the Tribunal finds that the applicant does not face a real chance of persecution from the security forces if he returned to a government controlled area of Sri Lanka." (Emphasis added)