Applicants in V 6 of 2000 v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 The applicants have sought a review of a decision of the Refugee Review Tribunal ("the Tribunal") affirming a decision of a delegate of the respondent, the Minister for Immigration and Multicultural Affairs ("the Minister"), to refuse the application of the first-named applicant ("the applicant") for a protection visa. The applicant has claimed that the Tribunal committed an error of law of the kind contemplated by s 476(1)(e) of the Migration Act 1958 (Cth) ("the Act") in that it incorrectly interpreted the applicable law or incorrectly applied the law to the facts, particularly in its evaluation of the applicant's claim to have a well-founded fear of persecution by reason of her political opinions. 2 It should be noted that the applicant had originally contended that the Tribunal had failed to make findings of fact as required by s 430(1) of the Act and that consequently it had committed a procedural error under s 476(1)(a). However, that contention is no longer available as a ground of review since the judgment of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1.

Background and the Tribunal Decision 3 The applicant, a Tamil, was born in Colombo but returned as an infant to the eastern region of Sri Lanka and remained there for about 15 years when she moved with her family to Colombo. She completed her education in Colombo and was employed in various capacities until her marriage in 1980. Later, she returned to part-time work in 1982. Her husband, the Tribunal found, had a good position as a manager. Her husband is a Sinhalese and they have three children, one now aged 19 and twins aged 14. 4 In July 1996 a bomb blast at the Dehiwela railway station killed over 100 people and injured 500. Thereafter, the police conducted a house-to-house search in the course of which they found the applicant at home alone and immediately identified her as a Tamil. The police also discovered an unopened letter which had been sent to the applicant from Canada for on-forwading to a friend in Batticaloa. When the police opened the letter they found it was written in Tamil and contained a bank draft for 50,000 rupees which the applicant said was "a lot of money for Sri Lanka". 5 After the finding of the letter, the applicant claimed, she was taken to the Dehiwela police station where she was tied by the hands and beaten with a baton on her legs. She was repeatedly asked about the letter which, she maintained, was an innocent family communication. At the end of the interrogation and maltreatment she was unable to stand. Nevertheless, on her account, she remained in detention at the Crime Detection Bureau ("the CDB") for five days until a lawyer retained by her husband procured her release on condition that she report once a week to the police station. 6 The applicant also relied on her connection with her nephew ("N"), who had returned from Singapore and stayed with the applicant and her family in expectation of attending a family wedding in Batticaloa in June 1996. The applicant and her immediate family took one of N's suitcases to Batticaloa while he travelled there independently by public transport. She then claimed that after her release from the CDB in August 1996 she had been visited by an uncle who told her that N was a Tiger (member of the Liberation Tigers of Tamil Elam) ("LTTE") and warned her not to have anything to do with him. The same uncle said that the army was looking for N and his parents had moved to a neighbouring village for safety. This warning prompted the applicant to leave Sri Lanka. 7 The applicant also claimed that, after she had arrived in Australia, the police visited her house in Colombo to find out why she had not been reporting. The applicant's evidence of what she learned after her arrival in this country has been summarised by the Tribunal as follows; "Up until her departure she claimed that she was reporting regularly. She heard that the police were angry. She also learned that N's father had been arrested. The applicant claims that the police have questioned many of her relatives and they have asked them about the applicant. She is certain that N and his father would have told the police that N had stayed with her and that they had taken a suitcase with them to Batticaloa for him. As a result of all of this the applicant claims that she is wanted by the police." 8 The Tribunal also noted that the applicant's claims had been corroborated by her husband. As well, it canvassed evidence from an Australian medical practitioner to the effect that the applicant is suffering from post-traumatic stress disorder and depression. 9 In its "Findings and Reasons", the Tribunal observed that the applicant had made two principal claims, one of detention for five days and mistreatment in July 1999, and another of connection with her nephew, an LTTE suspect, which had provoked police interest in her which continued after her arrival in Australia. Both of those claims were said to found a justifiable apprehension that the Sri Lankan authorities had imputed to the applicant the political profile of an LTTE sympathiser. 10 The Tribunal's primary findings of fact were set out in this passage; "The Tribunal considers that the applicant has exaggerated her profile in Sri Lanka. The applicant is in her mid forties with three daughters. Her husband is Sinhalese and he had a good job prior to their departure for Australia. The applicant herself has never been involved with the LTTE and expresses no support for this group. She has lived in Colombo all of her adult life and she told the Tribunal that she lived in an area that was mixed. This profile makes it highly unlikely in the Tribunal's view that she would be imputed with an opinion of support for the LTTE. There is no suggestion that the applicant had any problems with the security forces prior to July 1996. The applicant does not claim to have been charged with any offence either under the general law, the Emergency Regulations or the Prevention of Terrorism Act. Therefore there is no reason why she would be required to report after her claimed detention. The Tribunal is satisfied that the applicant has made up this claim. The Tribunal also does not accept that in the context of doing house to house searches after the Dehiwela bombing that the police would have any interest in detaining the applicant just because they saw an ordinary letter with a bank draft. When these matters are considered together with her profile and situation the Tribunal finds that the applicant's account that she was detained for five days, tortured and released on condition that she report once per week to be far fetched. The Tribunal notes that her evidence is supported by her husband. Nonetheless the Tribunal is satisfied that the applicant has created a profile for herself that did not exist before her departure." 11 The Tribunal then considered, in the alternative, whether, if the applicant's claim to have been detained were correct, the detention had occurred for the reasons she attributed to it, or in the circumstances which she claimed. The Tribunal said; "Even if the Tribunal is wrong about this finding the Tribunal does not accept that she was imputed an LTTE profile because in the context of the Dehiwela train bombing the authorities, whilst conducting a house to house search found a letter in Tamil with a bank draft for a sum that was large in Sri Lankan terms for her to forward to a friend in Batticoloa. Whilst the Tribunal accepts that the authorities in the context of this bombing conducted house to house searches, the Tribunal does not accept that the letter and money were sufficient to impute her with a pro-LTTE profile. The applicant told the Tribunal that as far as she was aware the letter was no more than normal correspondence between relatives. There was no indication in the letter to indicate that it had anything to do with the LTTE or was meant for anything other than the benefit of the person to whom it was addressed. She claimed that at the police station she told this to them over and over. In these circumstances the Tribunal does not accept that the applicant was imputed with an LTTE profile. The Tribunal also does not accept that she was mistreated in detention as claimed." 12 Another question postulated by the Tribunal, as part of a second alternative analysis, was whether, if the applicant had been detained for the reason, and in the circumstances, which she claimed, she had been detained for five days and required to report to the police station after her release. As to that matter, the Tribunal said; "Even if the Tribunal is wrong about the applicant's detention and she was detained because the police saw the letter and money, the Tribunal does not accept that there is any reason she would be held in the Crime Detention Bureau as claimed. The Tribunal also does not accept that it is plausible that it would take the applicant's husband five days to have her released from custody. He can vouch for her, is Sinhalese and in the Tribunal's view would have had no difficulty in securing her release. In addition, as stated above, in the circumstances that the applicant outlines it is not plausible that she would be required to report to the police station once every week. Again the applicant has done nothing wrong and the Tribunal does not accept that the authorities would have any interest in seeing the applicant once per week. There is also no information that the applicant can give the authorities about the LTTE as she has no involvement. So even if the Tribunal is wrong and the applicant was taken to the police station after the Dehiwela bombing the Tribunal concludes that she has exaggerated her period of detention and her having to report afterwards. The Tribunal notes that the applicant has not claimed to have been charged with any offence or been bailed or been in any situation where she might be required to report. " 13 The Tribunal noted that the applicant had encountered only one "problem" in many years of residence and had experienced no further difficulties after her alleged detention until her departure for Australia. Accordingly, the Tribunal was able to reach this conclusion; "In such circumstances the Tribunal considers that in light of a long period without difficulties during the almost seventeen years of fighting between the authorities and the LTTE, that there is no real chance that she will have any further problems should she return to Sri Lanka. The Tribunal is satisfied that this assessment holds whether it is considering the applicants claims in relation to imputed political opinion or in relation to her Tamil ethnicity, or indeed in relation to any other Convention ground." 14 The Tribunal regarded as "exaggerated" the applicant's assertions which were said to give rise to an imputed political opinion by reason of her connection with her nephew. It went on to say; "The Tribunal does not accept that there is any real chance that N or his father would have revealed the applicant's name. Even if he was an LTTE operative, the Tribunal does not accept that there is any reason for the authorities to consider that the applicant is imputed with an LTTE profile. Even if they made an inquiry as to whether he stayed with the applicant, the Tribunal does not accept that this would lead to any suspicion falling on her, such that she would be imputed with an opinion of support of the LTTE. The Tribunal does not accept that the authorities were looking for the applicant after she departed as claimed. Firstly if they were looking for information about N then they would have been looking for all of the family. Interestingly however in all of this it only seems to be the applicant who claims to be at risk. As stated above the Tribunal does not accept that the applicant was required to report and so does not accept that the authorities were also after her for failing to report. Again in the Tribunal's view someone in the applicant's position who has lived in Colombo for many years, is married to a Sinhalese man, has three children is not going to be suspected of supporting the LTTE. There is no reason why the applicant would have any knowledge of N that would be of interest to the authorities. The Tribunal notes the applicant's claim that she has learned that the police have been looking for her after their departure. However in view of the Tribunal's findings in relation to her reporting and in relation to N the Tribunal does not accept that the authorities have shown any interest in her since her departure. The Tribunal also does not accept that some delay in the issuing of a passport for the applicant indicates that the authorities have any interest in her. The Tribunal would add that the applicant claims that she assisted N prior to her claimed detention. However the Tribunal notes that the applicant's story does not indicate that N had been detained at the time of her detention. There is also no suggestion in the applicant's account the she was questioned at the police station after the bombing about N." 15 The Tribunal then reviewed a considerable body of "country information" related to Sri Lanka, including material to which it had been referred by the solicitor who appeared for the applicant. The conclusions drawn after that review have been stated as follows; "Whilst it is always difficult moving from the general information to the particular situation of the applicant, a number of conclusions can be drawn from this information. Firstly for some years the security forces have considered young Tamils recently arrived from the north and the east to be of particular interest. Clearly the applicant does not fit this profile. Secondly it can be inferred that those detained for more than a short period to check their identity are the ones at risk of mistreatment in custody. It is in the context of attempting to obtain a confession for use under the ER or PTA that torture is used. It follows that where someone is detained as part of a cordon and search operation and released within a short period of time they do not fit within this category. It can also be inferred that there is a problem with extortion in Sri Lanka. This country information does not change the Tribunal's view that the applicant as a forty five year old Tamil woman married to a Sinhalese man with three children does not face a real chance of persecution either as a result of her Tamil ethnicity or as a result of any imputed political opinion. Indeed taking the country information as a whole the Tribunal is of the view that it reinforces the Tribunal's view that the applicant would not be of interest to the authorities and would not be imputed with an opinion of support for the LTTE. She does not fit the profile of a young Tamil recently arrived from the north or east. She has strongly developed roots in Colombo and has a Sinhalese husband who can vouch for her. The Tribunal notes the history as taken by the medical practitioner but as stated above does not accept that the applicant has been treated in the way claimed. On the other hand the Tribunal accepts that the applicant has the symptoms described by the medical practitioner. The applicant has lived in Colombo which is an area that suffers from LTTE bombings that randomly take the lives of innocent people. She has young children who she no doubt wants the best for and has risked a lot to stay in Australia where her future has for some time been uncertain. As a result the Tribunal accepts that she has had suicidal ideation and has suffered from depression and that she has the symptoms of post traumatic stress disorder. However the Tribunal does not accept that these problems stem from the reasons the applicant has claimed. ... ... ... ... ... The Tribunal should finally add that it has considered the applicant's claims cumulatively. In the Tribunal's view even accepting the applicant's history and that of her nephew there is no real chance that she will be imputed with an opinion of support of the LTTE. Even having spent some time overseas, the Tribunal's view is that having a Sinhalese husband will protect her from any risk of extortion as mentioned in the Canadian summary above. In relation to her Tamil ethnicity, the applicant lived in Colombo for many years and at least up until July 1996 without problems. As a result the Tribunal does not accept that there is any real chance the applicant faces persecution as a result of her ethnicity should she now return to Colombo. Taking all of the applicant's claims into account, separately and cumulatively, the Tribunal finds that the applicant does not face a real chance of persecution should she return to Sri Lanka." 16 The findings indicated above led the Tribunal to conclude that the applicant's fear of persecution, for the reasons of political opinion or ethnic background, was not well-founded. As a result, it rejected her application for a protection visa.