SECTION 476(1)(e)
21 It was then put on behalf of the applicant, however, that if there were a finding or at least a possibility of a finding that the applicant had in fact joined the army and therefore might be the object of harm at the hands of the LTTE, the Tribunal had not adequately dealt with those fears. It is in that context that the reference to the incident in Switzerland becomes more significant. The assertion is that the applicant had reason to fear the LTTE if he returned to Sri Lanka.
22 The Tribunal did in fact consider that possibility and it is the consideration of that possibility that gives rise to the second ground. The Tribunal in its reasons recorded that it was put to the applicant that, even if he feared reprisals from the LTTE in his home area, he could reasonably be expected to re-locate to Colombo. The applicant said that if went to Colombo he would be arrested by the army and if he returned to his home the "grama sevaka", or village head man, would know. In its reasons the Tribunal further recorded:
"He said that the news had spread all over his village that he had joined the army and had deserted. The Applicant said that if he were required to return to Sri Lanka he would commit suicide and would die here. It would be better to die here without undergoing any torture."
23 In its conclusion the Tribunal said as follows:
"Moreover, as I indicated to the Applicant in the course of the hearing before me, even if I were to accept that he genuinely feared reprisals from the LTTE in his home area I would consider that it would be reasonable to expect him to relocate to Colombo. The Applicant said that if went to Colombo he would be arrested by the army but for reasons given above I do not accept that this would be the case and even if it were to be the case I would not accept that his arrest as an army deserter would amount to persecution for a Convention reason."
24 I should observe first that the language of that passage confirms the unequivocal finding made by the Tribunal that it was not satisfied that the applicant had joined the army. The complaint, however, based on acceptance of the contention that the reasons are equivocal, is that the Tribunal did not give adequate consideration to the two questions that arise in relation to the possibility of relocation.
25 The first is whether an applicant could, in fact, relocate to another area. The second, is whether he could reasonably be expected to do so. That second question is an important one, because notwithstanding that real protection from persecution may be available elsewhere within the country of nationality, a person's fear of persecution in relation to that country will remain well founded with respect to the country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person. In the context of refugee law, the practical realities facing a person who claims to be a refugee, must be carefully considered (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 442). I do not consider that there is any substance in the ground advanced on behalf of the applicant in this regard. The applicant was given the opportunity of explaining why, if at all, it would not be reasonable to relocate to Columbo. One could imagine any number of reasons that might have been advanced. The only one that was advanced by the applicant was that he feared arrest by the army. Of course, the primary answer to that is the Tribunal's finding that the applicant had not been in the army and therefore had not deserted, and therefore would not be at risk of arrest. However, even if, on the hypothesis upon which I am dealing with this question, there was a possibility that the Tribunal was wrong in that conclusion, arrest for desertion would not amount to persecution for a convention reason.
26 The Tribunal made clear findings that there was no reason to suspect that the applicant would be singled out, or punished more harshly, because he is a muslim, or for any other convention reason in being dealt with as a deserter. If his only fear was arrest by the army for desertion then that is not, as the Tribunal concluded, persecution for a convention reason. It follows, in my view, that the second ground has not been made out.
27 It follows that I would order that the application be dismissed and the applicant to pay the respondent's costs.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.