Minister for Immigration & Multicultural Affairs v Rajadurai

THE COURT: 1 The Minister appeals from a decision of Mathews J who set aside a decision of the Refugee Review Tribunal and remitted the respondent's application for a protection visa for rehearing before a differently constituted Tribunal. 2 The respondent is a Tamil and a citizen of Sri Lanka born on 19 May 1965. 3 On 31 March 1997 he arrived in Australia and on 13 May of that year applied for a protection visa. His application was accompanied by a statutory declaration, to which reference will need to be made, and other material. He gave the following account. 4 Between 1994 and 1996 he made business visits to the Eastern Province of Sri Lanka, sometimes for extended periods. In late 1995 he was awarded a contract to carry out repairs to a building at the Eastern University and for that purpose was living at Batticaloa. Twice in October 1995 he was approached by men who said they were members of the Liberation Tigers of Tamil Eelam (LTTE) who asked him to donate money. He refused. About the end of that month men forced him at gun point into a vehicle where he was blindfolded and driven to an LTTE camp. He was forced to do heavy work digging bunkers. After a few days he was taken before the leader of the group who told him that if he did not agree to pay five per cent of his income to the LTTE he would be kept working at the camp. He agreed to make the payment. 5 In the following month the respondent's work at the university concluded and he was paid. He was then visited by two LTTE members who again blindfolded him and drove him to the camp. He spoke to the same leader and said that he was agreeable to paying the five per cent but he would shortly be leaving Batticaloa and returning to Colombo. The leader demanded that he allow three LTTE members to accompany him to Colombo, so as to provide a cover for them at the various check points. The leader threatened to kill the respondent's family unless he agreed to this. 6 The next day the respondent and the three LTTE members left for Colombo. When they passed through check points the respondent told the inspectors that the three men were his employees who were returning to Colombo to find work. 7 Upon his return to Colombo the respondent continued to work in his business. He revisited Batticaloa on a few occasions but the LTTE made no further demands on him. 8 In October 1996 the respondent was arrested by police who took him to the local police station. He was asked to identify a man there who was one of the three LTTE members who had accompanied him to Colombo. At first the respondent denied knowing the man but after a series of assaults he eventually gave a full account of his involvement with the LTTE during the previous year. During all this time he was repeatedly assaulted and beaten and had his head pushed into the bottom of a dirty toilet bowl. He was kept in custody until late November in inadequate and degrading conditions. Towards the end of that time he was taken before a court and then released on condition that he report to the police each week. 9 The first time the respondent reported to the police two Criminal Investigation Division (CID) officers took him to a separate room and asked him to give a full account of his involvement with the LTTE. He did this. The CID officers were polite and apparently sympathetic. They asked him if he would accompany them to Batticaloa and identify the men who had harassed and mistreated him. The respondent was afraid but the officers told him not to worry and that they would protect him. 10 What then happened is described in the statutory declaration which the respondent made in Sydney on 13 May 1997 to accompany his application for a protection visa: "30. In the third week of January 1997 four CID officers came to our house and asked whether I will be able to come with them to the East and help them. I first refused. Then they said if I was not linked with the LTTE why I should refuse their request. I then said that I was already in the police detention for one and a half months and I did not want to get involved in these matters again. But the CID insisted that I should come along with them at least once, and if I refused, they could still take me forcibly with the help of the police and the security forces. 31. After this incident I left the house and went into hiding. I went to my uncle's house in Gampaha and remained indoors. During this time I also contacted my brothers and sister in Australia and told my problem to them. At that time my sister was planning to get married. My uncle who was aware of my problem said that he would help me to get the visa by providing a letter saying that I worked for his company. He also gave his bank details in order to support my application. Therefore I sited [sic] this as a reason and applied for a visitor's visa. I was granted a visa on the 21 February 1997, and I came to Sydney on 31 March 1997. 32. I fear that if I return to Sri Lanka I will be put into the Police cell again, tortured, harassed for not obliging to their request and travel to the East to identify LTTE members. I am also afraid that the Sri Lankan authorities would have now concluded that I was linked to the LTTE, although I was compelled by the LTTE to carry out their orders. I am afraid that they will arrest me and persecute me. Therefore I apply to the Australian government to protect my life." [Emphasis added]