Fernando v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT Introduction 1 This is an application for an order of review of a decision, on 22 July 1998,by the Refugee Review Tribunal ("the Tribunal") to affirm the decision of a delegate of the respondent not to grant to the applicants a protection visa under the Migration Act 1958 (Cth) ("the Act"). The applicants are twin brothers who made identical claims which were the subject of the one decision by the Tribunal. 2 It was necessary for the applicants to satisfy the respondent that they were persons to whom Australia had protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention"). In particular, it was necessary for each applicant to satisfy the respondent under Article 1A(2) of the Convention that he was a person who: "…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of [his] nationality and is unable or, owing to such fear, is unwilling to avail [himself[ of the protection of that country;…"

Factual Background and the Tribunal's Reasoning 3 The following statement of the factual background has been taken largely from the reasons of the Tribunal. 4 The applicants were born on 4 November 1974 in Sri Lanka. They are of Sinhalese ethnicity and Buddhist religion. The first-named applicant, whom I shall call "Sudesh", without thereby intending any disrespect whatsoever, arrived in Australia on 7 February 1996. His brother who I shall call "Manoh" (on the same basis) arrived in Australia on 30 June 1996. They both applied for protection visas on 30 June 1997. According to their application forms, they lived at the same address in Moratuwa, a suburb of Colombo, until their departure from that country. Sudesh completed his schooling in 1993 and worked as a marketing executive for an insurance company in Colombo from 1993 until February 1996. Manoh finished school in 1991, after which he worked as a steward in two different restaurants in Colombo until May 1996. Neither brothers made any claims under the Convention in their initial applications. They both indicated that they would provide more information at an oral hearing. Despite this, neither was interviewed, nor were they advised that a decision was to be made without an interview. Sudesh's application was refused on 17 July 1997; Manoh's application was refused on 22 July 1997. 5 On 14 August 1997, the applicants applied to the Tribunal for review of those decisions. At that time the applicants provided a written submission stating that their father owned a timber business which took timber from the jungles in the Vanni region of the North Central Province of Sri Lanka. They said that guerillas belonging to the Liberation Tigers of Tamil Eelam ("LTTE") were also present in those areas and that some years previously their father's business partner and others had been abducted from a lumber camp in Welinkanda area in Polonnaruwa District. On 4 September 1997 the applicants' migration agent (who is also a barrister and solicitor) provided a written submission which, in summary stated that: · the applicants' father's business partner was abducted and disappeared in July 1988, after which the family received threats from the LTTE; · in 1992 the applicants began helping their father in his business, which was in decline because of threats and harassment from the LTTE; · in January 1993 when they were visiting Welinkanda with their father they were stopped by the LTTE, who took their money. However, their father was able to hoodwink those people and escape with the applicants. This incident was immediately reported to the local army; · after this the LTTE made more serious threats against the family and the Sri Lankan authorities refused to protect them; · fearing that his sons would be abducted or killed, Mr Fernando senior sent them to live in Moratuwa, while he continued with the family business. However, in the face of continued ransom demands and threats from the LTTE, he was ultimately forced to give up the business; · the family continued to receive death threats from the LTTE and in 1996 the applicants decided to seek safety in Australia. 6 The applicants also provided to the Tribunal some documentary material which was as follows. First, a copy of an extract from the Polonnaruwa police information book headed "Appeal for Security". That document was dated 10 January 1992 and stated that Mr Fernando senior, the applicants and some of their workmen, while working in the Welinkanda area, had been intimidated by the LTTE who had threatened them with extortion. Mr Fernando senior had been forced to send his sons to Moratuwa and to abandon his business because of those problems. A stamp at the bottom of the statement appeared to indicate that a copy of the document had been obtained on 30 July 1997. Next was a copy of an affidavit from Mr Fernando senior dated 22 July 1997 which asked that his sons be granted a protection visa "on humanitarian grounds". There was also a copy of an undated letter, apparently from the President of Sri Lanka, addressed to Mr Fernando senior which indicated that Mr Fernando senior had written to the President on 14 February 1998 asking that he (the President) provide protection for himself and his sons. The President replied in his letter that he could not personally provide this protection, but he had passed the request along to the Ministry of Defence for "quick action and report". 7 At the hearing, the applicants told the Tribunal that their main reason for fearing to return to Sri Lanka was that they would be at risk of harm from the LTTE, but they added that they had also had problems because of their own and their father's involvement with the United National Party ("UNP"). In relation to their problems with the LTTE, Sudesh told the Tribunal that the LTTE had targeted his family because they wanted to stop his father cutting timber in the area where the LTTE was operating, because the LTTE also cut that timber to earn money. Their father had often seen LTTE members in the jungle, so he knew where they hid and where they kept arms and ammunition. The LTTE were afraid that he would give this information to the authorities. Sudesh said that the main problem had occurred in 1993 when he, his brother, his father and a few workers were cornered by the LTTE. He said that his father's business had ceased operating at the end of 1993. Two major LTTE leaders had been captured when he and his brother had been rescued from the LTTE in 1993 and because of this, so Sudesh stated, the LTTE wanted revenge. He had never returned to the house where he lived previously. His mother and sister continued living there. People on scooters came and asked about him and his brother. He believed that these people were members of the LTTE, because they spoke broken Singhala. He claimed that the LTTE "roamed continuously in many places". Sudesh also said that in 1995, when he was at home with his brother and mother, someone had tapped at the door and said that they were from the police. He and his brother jumped into the next yard. The men, who were in plain clothes, searched the house and ransacked it. A local shopkeeper later told them that the people who had come to the house had dumped some arms in a drain before doing so. Sudesh said that he did not believe that these people were really from the police and after this incident he and his brother decided to leave the country. Manoh said that he had nothing to add to his brother's statement. 8 In response to questions from the Tribunal as to what had happened to other members of his family since he left Sri Lanka, Manoh said that his father had moved to the hill country to avoid problems with the LTTE, and his mother and sisters were living with his grandmother, so there was no longer anyone at the family home. However, so he said, his father had told him by telephone that some of his former employees, who still worked in the Vanni area, had been asked about the family by the LTTE, which indicated that the LTTE was still interested in them. In relation to their involvement with the UNP, the applicants told the Tribunal that their father was a member of the UNP and that this connection had helped them obtain licences for their business when the UNP was in power. However, as the former opposing party was now in power, they were unable to seek protection from the police. Their father, although not holding a formal position in the UNP, had acted as a coordinator for that body in Moratuwa, which was the suburb of Colombo in which they lived. The applicants said that they had had some involvement with the UNP but not at the same level as their family. Manoh said that he had had some minor problems because of his and his father's involvement in the UNP. He said that his family home had been attacked by members of the Sri Lanka Freedom Party ("SLFP") and that members of the SLFP had also attacked UNP meetings in which he was involved. These attacks all happened at election time. Sudesh told the Tribunal that he had had less involvement in politics than his brother and that he had nothing to add to what his brother had said regarding the foregoing problems. Manoh told the Tribunal that so far as he was aware his father had not had any problems because of his UNP membership since he (Manoh) had left Sri Lanka. Sudesh said that because the UNP was no longer in power, his father was unable to obtain the licences needed to carry on his business and the business had closed. He added that his father's main fear was the LTTE and he now lives in the hill country some distance from Colombo. Manoh told the Tribunal that he thought that he and his family would have problems if they returned to live in Moratuwa, because the government and SLFP members were angry with them because of their UNP membership and would cause them problems if they returned to live there. The Tribunal asked the applicants why they had not previously mentioned their involvement with the UNP and the problems which such involvement had caused them. Their response was that their main concern was with the problems they faced with the LTTE. Sudesh said that they would not receive police protection because of their membership of the UNP. At the hearing, the applicants produced a translation of a document from the police station at Moratuwa. The document, dated 17 August 1993, stated that Mr Fernando senior and his business partner had experienced problems with the LTTE as the area in which they logged timber was also exploited by the LTTE who felled trees illegally to gain money for their cause. The document also stated that the LTTE did not want Mr Fernando senior to continue his business and as a result he was harassed and threatened. His business partner was abducted by the LTTE and according to information received some time later, he was subsequently killed. In the middle of August (year not stated) Mr Fernando senior and his sons were captured by the LTTE but Mr Fernando senior managed to escape and get help from an army unit who saved his sons and captured some LTTE members, including two leading members of the group. As a result of this the LTTE, which had a presence throughout the country, had made death threats against Mr Fernando senior and his family and they fear for their lives.