"CCC" v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT Introduction 1 The first appellant, CCC, was born on 19 September 1947. She is a Sri Lankan national of Tamil ethnicity. She was married on 28 January 1987. CCC has a daughter, NNN, the second appellant, who was born on 15 August 1987. The first appellant and her husband separated in 1995. On 9 September 1997, CCC and her daughter arrived in Australia on a visitor visa. On 8 December 1997, the first appellant lodged an application for a protection visa with the Department of Immigration and Ethnic Affairs. That application was refused on 5 February 1998. An application for review of that decision by the Refugee Review Tribunal ("the Tribunal") was lodged on 10 March 1998. The daughter was included in each of the applications. The husband, who has since come to Australia, has made a separate application for a protection visa. 2 Following a hearing on 21 June 2000, the Tribunal, on 10 July 2000, affirmed the decision not to grant protection visas to the appellants. On 23 August 2000, they applied to the Court for an order of review of the Tribunal decision. That application was heard on 30 April 2001 and dismissed by Marshall J on 8 June 2001. On 18 June 2001, a notice of appeal was filed against the decision of Marshall J. On 8 November 2001, Mr Star acting as pro bono counsel for the appellants, filed a proposed amended notice of appeal. Claims and Evidence 3 In a document attached to her application for a protection visa, the first appellant described herself as "… a refugee on account of the of the on-going ethnic violence in Sri Lanka and also woman at risk under these conditions as I have been abandoned by my husband who now lives in Saudi Arabia". She also described herself as a victim of race riots in 1983 in which her property was burnt down. She and many of her relatives were tortured and her nephew was fatally shot. One of her uncles committed suicide because he could not bear the torture and another uncle died from heartbreak at the death of his son. All of these matters made her fearful of living in her country of birth. 4 The first appellant's husband left her in August 1995 and went to Saudi Arabia promising to bring her and her daughter there, a promise which was never fulfilled. She and her daughter were left living alone in a flat in a predominantly Sinhalese area. Her Muslim in-laws rejected her because of her ethnicity. Her Sinhalese neighbours passed adverse comments about her ethnicity and would report her to Security Authorities and the Sri Lankan army. 5 Several times a month, according to the first appellant, her house was checked by Sri Lankan army officers wielding guns. They would come knocking on the door in the middle of the night and search the house. On several occasions she and her daughter were taken at night to a police station and questioned about visitors. These were visitors from the north who were staying with them. She was expected to register visitors with the police. This could not be done within one night. Someone in the block of flats in which the appellants lived had called the police and told them there were Tamil Tigers in the appellant's house. On several occasions the first appellant and her visitors were locked up in the police station for days without food or water until police were satisfied that she was in the clear. On one occasion she had to spend about eleven days in a police station as one of her visitors was from Jaffna. The police suspected the first appellant of being a terrorist as well as her visitor. Only when her visitor was cleared was she released. 6 In August 1997, according to the first appellant's statement in support of the protection visa application, police entered a Tamil home in a flat close to her and shot and killed a five year old child, accusing its parents of knowing the whereabouts of terrorists who had visited them some time previously. The police allegedly shot the child to teach the parents a lesson. The first appellant said that she needed a break from all these tensions and applied to come to Australia on a holiday to visit her sister and family until the tension in Sri Lanka ceased. A recent bombing in the city two months previously had also scared her. Her sister and husband in Australia had been trying to reconcile her failed marriage by inviting her estranged husband to come to Australia on a holiday. But reconciliation failed. The first appellant said she was left to face the consequences of returning to Sri Lanka "…and living the life as a single woman at risk and as a suspected terrorist for no fault of mine except for my ethnicity". Her application for a protection visa was said therefore to be based on a fear of persecution in Sri Lanka on account of her ethnicity and suspicion of involvement with the LTTE on account of entertaining Tamil relatives from the north. 7 In a submission put to the Tribunal by Victoria Legal Aid on behalf of the appellants, a summary of their claims was set out. In that summary reference was made to the fear which the first appellant said she experienced as a result of the 1983 race riots in Colombo and the burning of her house by Sinhalese people. It referred also to the assassination of President Premadasa in 1993 and media speculation that the Tamil organisation, LTTE, was behind the killing. The first appellant was said to be fearful of being killed by Sinhalese at this time. Incidents in which police visited her home in 1995 were referred to. The first of those occurred when relatives from Jaffna stayed at her home. The second occurred in August 1995, at the time of her daughter's birthday. She once again had visitors from Jaffna and police searched her premises for LTTE information. She claimed to have been assaulted by security officers who kicked her and pushed her around and pointed guns at her. She complained of selective harassment and discrimination in 1996 by the management and staff of her local bank in Colombo and of her complaint to the bank manager about a security officer who swore at her and refused her entry. Police were called and she was taken to a police station where she claimed to have been verbally and physically humiliated for several hours. 8 In March 1996, when a friend visited the first appellant from Jaffna, a Sinhalese neighbour abused her on the stairway of the flats for using Tamil language and slapped her on the face. She made a complaint to police who did nothing about the incident. She was questioned in Sinhalese and could not explain herself properly. No action was taken on her complaint. She said that abusive signs and messages were placed on and under her door about her being a Tamil and a supporter of the LTTE. On another occasion in 1996 she was taken to a police station and questioned after standing waiting for a friend outside the Colombo YWCA. At Christmas time that year, a relative from Jaffna stayed with the first appellant in Colombo. Both were subsequently arrested by police and detained for about ten days. The relative was tortured and the first appellant interrogated at gun point and denied water or food for ten days. She also claimed to have been the subject of an attempted rape by an officer in charge of security officers searching her house in September 1997 as part of a response to information that the LTTE were planning to blow up the domestic airport, Telecom and the Water Board in Colombo. The Tribunal's Findings 9 The Tribunal accepted that the first appellant is a Sri Lankan national outside her country of nationality, that she is a Tamil speaking Christian and that she was born and has always lived in the Western Province of Sri Lanka, mostly in Colombo apart from a brief period she spent in Jaffna as an infant. It accepted that she was married to a Sinhalese Muslim, that the marriage broke down in 1995 and that she had recently recommenced living with her former husband, although she was not hopeful of effecting a true reconciliation. Her daughter was accepted as also being a national of Sri Lanka, outside her country of nationality. 10 The Tribunal found that the first appellant was a victim of the 1983 communal riots, that her house had been burned down and that she had subsequently bought a house in the same neighbourhood. She went abroad several times after 1983, but each time returned to Sri Lanka. The Tribunal concluded therefore that the first appellant did not fear persecution from the authorities or her Sinhalese neighbours on the grounds of her Tamil ethnicity. It accepted, however, that her parents-in-law were unhappy with her marriage to their son and made things difficult for her and that she suffered insults from time to time on account of her ethnicity. 11 The Tribunal considered that, having regard to the terrorist threat associated with the ongoing civil war in Sri Lanka, it was legitimate for the Sri Lankan government to impose strict security measures in the capital Colombo in order to detain terrorists and to reduce or prevent attacks on innocent civilians. Such legitimate measures included requirements for the registration of visitors. 12 The Tribunal referred to independent country information and its conclusion in a number of other cases that Tamils are not harassed in Sri Lanka by reason of their race. Young newly arrived Tamils from the North and North East, particularly if they come from LTTE controlled areas, may be at risk of harassment because of suspected affiliation with the LTTE. Such Tamils would not generally be able to communicate in Sinhalese or explain the reasons for their presence in Colombo, without any history of connections with that city and nobody to vouch for them. 13 The Tribunal referred to the first appellant's confrontation with a neighbour in 1996 and her subsequent complaint to the police. Although she claimed no action had been taken it was apparent from her evidence that she spoke Sinhalese and the policeman who took her statement probably only spoke that language. Although it might be the case that she had been assaulted by a neighbour her complaint was referred to a conciliation board. According to the first appellant her complaint had been dismissed for want of evidence. Neither she nor her friend gave any evidence to the police because they did not speak good Sinhalese and she was afraid. The Tribunal found that she could have interpreted for her friend but her own visits to the police station and her appearance at a conciliation process without any harm led to the conclusion that her friend had nothing to fear. The Tribunal was satisfied of the existence of some animosity between civilians of different ethnicities. However the government had implemented measures to redress frictions such as those experienced by the first appellant and her neighbour. The evidence indicated that she had been given proper protection by the authorities and the lack of any evidence of further antagonism after the conciliation conference demonstrated the effectiveness of government measures. 14 On the bank harassment complaint, the Tribunal found that she was not mistreated by police and that the bank responded to her complaint although she initially indicated that she was unsatisfied with the response. In a letter to the Chairman of the bank on 19 February 1997, she said she was treated "honourably and with courtesy at all times". The derogatory behaviour directed at her by two bank guards partly because she was Tamil was accepted by the Tribunal. It found however, that, although insulting, such behaviour did not threaten her personal security. It was not of such a serious nature as to amount to persecution. Her complaints were addressed and eventually satisfactorily resolved as she was able to continue attending the bank without encountering insulting behaviour. The Tribunal then said: "Having regard to the resolution of her own documented difficulties in the context of other information before the Tribunal, including the Applicant's numerous returns to Sri Lanka and her return to live in a predominantly Sinhalese area (discussed below) the Tribunal is satisfied that there is a real chance she faces persecution for reason of her race, should she return to Sri Lanka." There is a typographical error in the reasons here which leaves out the word "not" in the last sentence before the words "a real chance". The Tribunal acknowledged that she may have been questioned on some other occasions but had always been released and returned to her usual residence. In respect of her claim about relatives arriving in the evening without time to register them, she conceded she had a telephone and the Tribunal was satisfied that she could have informed the police that she had unexpected visitors from Jaffna. The Tribunal found it not plausible that she would fail to notify them, particularly having regard to the problems she allegedly experienced when failing to register previous visitors. 15 Although the Tribunal found it plausible that the first appellant was required to attend at the police station to vouch for her relatives, it was not plausible that she would be kept there for a prolonged period until a particular relative was cleared. Nor was it plausible that her daughter would be detained. The Tribunal said: "The fact that the Applicant always returned to her usual address in a predominantly Sinhalese neighbourhood suggests, along with other reasons, that she was not in fear of persecution at that location and further suggests that she has exaggerated her experiences." 16 On the first appellant's claim that she had been detained and mistreated for several days, the Tribunal concluded that the claim was contrived or at least highly embellished. She may have attended at the police station for a brief time to vouch for relatives but was not mistreated as alleged. As for the contention that she was subjected to sexual abuse, this was not made until the hearing. She said she had previously only had assistance from males and was too embarrassed to disclose the attack. The Tribunal, however, was satisfied that she contrived the claim about the sexual attack. It was also satisfied that she had never been found to be connected with the LTTE and that there was no real chance that she would be suspected of such a connection in the reasonably foreseeable future. The Tribunal was satisfied that there was no real chance that she would face persecution in Sri Lanka on account of her Tamil race and/or real or imputed political opinions. In respect of her claim to face persecution as a "single woman at risk", the Tribunal noted that the Sri Lankan government had implemented laws to protect women against sexual abuse and was satisfied that it could provide adequate protection for women in the first appellant's situation. In that context it noted the claim by the first appellant that she had lived alone since 1992 without being sexually abused notwithstanding lewd gestures of the bank guards in 1996. 17 The Tribunal was not satisfied that she faced a real chance of persecution as a member of a particular social group comprising "single women at risk". The Tribunal said: "The Tribunal recognises that Sri Lanka is beset by ethnic and political difficulties but does not share the view that the Applicant or her daughter might be suspected of association with the LTTE. They left the country without hindrance and the authorities had ample time and opportunity to detain and charge them prior to their departure, but did not do so. The Tribunal finds they were of no interest to the authorities when they left Sri Lanka for Australia and available information indicates there is not a real chance they would be suspected of LTTE affiliation if they return or would be persecuted for reason of their Tamil ethnicity or for any other Convention reason." The Application for Review of the Tribunal's Decision 18 The application for review of the Tribunal's decision was the subject of substantial amendment by the time the matter came on for hearing before Marshall J. A further amended application was filed in Court at the hearing. Although it does not appear from the transcript that a formal order was made effecting the changes, the hearing seems to have proceeded on the basis of that version of the application. 19 In summary, the grounds of review relied upon were: