Muthusamy v Minister for Immigration & Multicultural Affairs [2001] FCA 1433 | Case summary

Federal Court of Australia|2001-09-06|Before: Emmett J

REASONS FOR JUDGMENT 1 The applicant is a national of Sri Lanka. He arrived in Australia on 2 March 1996 on a student visa that was valid until 4 January 2000. He lodged an application for a protection visa on 4 October 1996. On 23 February 1998 the application was rejected by a delegate of the respondent, the Minister for Immigration and Multicultural Affairs ("the Minister"). The applicant requested the Refugee Review Tribunal ("the Tribunal") to review that decision. That decision was confirmed on 26 June 2000. The applicant applied to the Court for judicial review of that decision and the decision was remitted to the Tribunal by consent on 19 October 2000. Subsequently the Tribunal differently constituted affirmed the decision of the delegate on 23 May 2001. The applicant now seeks an order of review of that decision. 2 The applicant was on born on 22 June 1971 at Hatton in the Sri Lankan hill country. He is an ethnic Tamil. He attended local schools until the time of the ethnic riots in 1983, when Tamils were terrorised by Singhalese thugs. During that time he and his young Tamil friend were abducted on their way home from school by three thugs and a uniformed police officer. The allegation is that they were taken to a dam where the applicant was raped and his friend murdered for resisting rape. The applicant was threatened with his own death and that of his family should he tell anybody. Subsequently the applicant was sent by his father with his mother and two siblings to Madras in south India where they stayed for five years. 3 Life was peaceful in Madras until the Liberation Tigers of Tamil Eelam ("LTTE") started attempting to recruit Sri Lankan Tamils. The applicant claimed that he was abducted by the LTTE on several occasions and taken to training camps and released after payment of bribes by his mother. The family returned to Sri Lanka in January 1989 and resided in Colombo. The applicant claimed that while he was there he was arrested and interrogated often. He claimed that bribes were paid for his release. 4 The applicant returned to India where he claimed to have been abducted once more by the LTTE. He said that on that occasion he was forced to assist the LTTE by transferring wounded cadre to Jaffna. He said that he was returned to Madras after about a day. Following the assassination of the Indian prime minister, Rajiv Ghandi, by an LTTE suicide bomber in May 1991, the Indian government refused to extend the applicant's visa. However, he was permitted to stay in India until his existing visa expired in early 1992. 5 The applicant then returned to Colombo where once more he lived with his mother and siblings in Dehiwala. He claimed that he was arrested on numerous occasions and his mother paid bribes for his release. He claimed that the police arrested young Tamils like himself for the purpose of extorting money from them. Prompted by those incidents, the applicant attempted to leave Sri Lanka, securing a student visa to the United States. He claimed that he did not travel to the United States because the course in which he had enrolled had already started. He said that he spoke to a representative of the University of Kentucky, who told him that he could apply for enrolment for the following semester. 6 The applicant contacted the Australian Centre for Education. He obtained a student visa to Australia and arrived, as I have indicated, on 2 March 1996. The applicant claimed that he feared the following: (a) the Sri Lankan security forces, because he is a Tamil and as such, is suspected of assisting the LTTE in Sri Lanka; (b) the Sri Lankan security forces, for reason of his having lived in India, where training of LTTE cadres is known to have occurred; (c) the Sri Lankan security forces, because they have previously arrested him for the purpose of extorting money; (d) the Sri Lankan security forces, because his brother-in-law was involved with the LTTE; (e) abduction and extortion at the hands of the LTTE; (f) extortion at the hands of the Sri Lankan security forces; (g) extortion at the hands of pro government Tamil groups; and (h) harm at the hands of the Janata Vimukthi Peramuna, a far left-wing Singhalese-based revolutionary organisation, which attempted to overthrow the government in 1971. 7 The Tribunal considered that much of the applicant's evidence was "simply implausible". The applicant claimed that when he was in India between 1983 and early 1989 and again between October 1989 and early January 1992, he was repeatedly abducted by the LTTE. He claimed that he was taken to the LTTE training camps in Nagapatanam and Vedaranniyam in Tamil Nadu. He claimed that on one occasion in April 1991 he was taken by speed boat to Jaffna. He claimed that on each occasion the LTTE not only allowed him to go but returned him to his home in Madras. The Tribunal did not accept that the applicant would have been repeatedly taken by the LTTE and released in that way. The Tribunal considered that that was implausible in the light of the evidence with regard to the LTTE's practices in relation to forced recruitment. 8 The applicant asserted that that was how it happened. He said that his mother had given the LTTE money. However the Tribunal considered that if the purpose of the LTTE had been to extort money from the applicant's mother, there would have been no reason for them repeatedly to abduct the applicant and take him to their training camps two or three times or to Jaffna, as he claimed happened. The Tribunal also considered that the applicant's account of the time it took to reach training camps in Jaffna was implausible. The Tribunal gave details of its conclusion in that regard. 9 The Tribunal reiterated that it considered that the applicant's entire account of his contact with the LTTE while he lived in Madras between 1983 and 1989, and again between October or November 1989 and early January 1992, was implausible. The Tribunal also considered it implausible that he would been arrested numerous times in Colombo between early 1989 and October or November 1989, and again after he returned to Sri Lanka in early 1992, as he claimed. 10 The Tribunal considered that the purpose of security checks in Colombo was to identify people who were unable to explain their presence in Colombo to the satisfaction of security personnel. The Tribunal considered that it was implausible that the applicant, whose national identify card would have shown that he was born in Hatton; that he was a permanent resident of Colombo and that he was working and studying at all relevant times in Colombo, would have been repeatedly arrested at check points or in round-ups in Colombo in 1989, and again after he returned to Sri Lanka in early January 1992, as he claimed. 11 The applicant also claimed that he had been arrested at his home in October 1989, because the police had come to know that he had come from India, and had suspected that he might have been connected with the LTTE. The applicant claimed that because he had come from India they had thought that he would have received training from the LTTE. He claimed that in 1994 he had again been arrested at his home and questioned about what he was studying and what he was going to do after he had finished his studies. He said that he also been asked whether he had had any further LTTE connection and whether he had been for LTTE training. 12 The applicant claimed that he had been arrested again on the night of the day of the Central Bank bombing in Colombo in January 1996. He said that he had been questioned about where he had been, what he had been doing when the bomb exploded, whether he knew anyone who had come from Jaffna recently, whether anyone from the LTTE had contacted him and whether he had any connection with the LTTE. 13 The Tribunal concluded that the applicant's entire account of his contact with the LTTE in India was implausible. It concluded that there was nothing in the independent evidence available to the Tribunal suggesting that the Sri Lankan authorities had singled out Tamils who had returned from India for arrest, detention or interrogation. The Tribunal did not consider that Tamils had been perceived by the Sri Lankan authorities as having had connections with the LTTE or as having undergone training with the LTTE, as the applicant claimed. The Tribunal considered that the applicant's account of his arrest in 1989, 1994 and 1996 was implausible. 14 The applicant had been granted a visa to travel to the United States to study at the University of Kentucky on 17 January 1996. However, the applicant did not use that visa to leave Sri Lanka and apply for refugee status in the United States, despite his claims that he feared being persecuted in Sri Lanka. 15 At the hearing before the Tribunal the applicant was asked why he had not travelled to the United States if his intention had been to seek refugee status there. The applicant suggested that he could have been asked for proof of admission to the university at the airport. Given that classes had started two weeks previously, the Tribunal accepted that the applicant would have had good reason not to travel to the United States if his intention was in fact to study at the University of Kentucky. However, the Tribunal did not accept that the applicant had a valid reason for not using the visa if his real intention was, as he claimed, to seek refugee status from persecution. The Tribunal considered that the applicant's failure to use his United States visa to leave the country cast doubt on his claimed fear of persecution in Ski Lanka. 16 Further, although the applicant came to Australia in March 1996, he did not apply for a protection visa until October 1996. The Tribunal suggested to the applicant at the hearing that the fact that he had delayed so long suggested that he had not in fact fled fearing persecution in Sri Lanka. The applicant's response was that he should have lodged the application immediately but he had not known whom to approach. He agreed with the Tribunal that the Department of Immigration would have been a good start. 17 The Tribunal considered that the failure to apply for a protection visa until over seven months after he had arrived in Australia cast doubt on the genuineness of the applicant's fear of persecution. The Tribunal suggested to the applicant that he in fact came to Australia to study at university and that he only decided to apply for a protection visa when another student suggested that course of action to him. 18 The Tribunal did not accept that the applicant genuinely holds a subjective fear of being persecuted if he returns to Sri Lanka. The Tribunal considered that the applicant's failure to utilise his United States visa to leave Sri Lanka and his failure to apply for a protection visa until over seven months after he had arrived in Australia indicated that he did not have such a subjective fear. 19 The Tribunal accepted that the applicant may have been abducted and raped as he had claimed by three thugs and a police officer in 1983. However, the Tribunal considered that there was nothing in the applicant's account of that incident to suggest that the police officer was acting in any official capacity. Nor did the Tribunal consider that the actions of the police officer were encouraged or condoned by the Sri Lankan authorities. The Tribunal did not consider that it could be concluded that the Sri Lankan authorities would not have taken action to punish the perpetrators had the matter been reported. 20 Notwithstanding the Tribunal's rejection of the greater part of the applicant's evidence with regard to his past experience, the Tribunal considered the question of whether or not any fear that the applicant had of being persecuted for Convention reasons if he returned to Sri Lanka now or in the reasonably foreseeable future was well founded. The Tribunal concluded that there was no reason why the applicant should be unable to find employment if he returns to Colombo, since his national identity card would show that he was born in Hatton and that he was a permanent resident of Colombo. 21 The Tribunal accepted that people in Colombo are stopped randomly at check points and in round-ups and are asked to show their national identity cards. It accepted that those with Tamil names are questioned. However, the information available to the Tribunal indicated to it that the purpose of the security checks in Colombo is to identify people who are unable to explain their presence in Colombo to the satisfaction of security personnel. The typical profile of persons who would fall under the scrutiny of the security forces in Colombo were young Tamils from the North or East. Further, the Tribunal concluded that there was nothing in the independent evidence available to it to suggest that the fact that a person had been to India would in any way influence the decision of the security forces to arrest that person. 22 The Tribunal considered that there was only a remote chance, not a real chance, that the applicant would be detained at check points or in round-ups by reason of his race if he returned to Ski Lanka now or in the reasonably foreseeable future. The Tribunal considered that the applicant would be able to satisfy the security forces that he had a legitimate reason for being in Colombo. 23 Since the Tribunal did not accept that there was real chance that the applicant would be detained for a Convention reason if he returned to Colombo, the Tribunal did not accept that there was a real chance that he would be tortured or otherwise persecuted while in detention, nor that money would be extorted from him in exchange for his release. The Tribunal referred to a submission made on behalf of the solicitor for the applicant that the applicant was at risk of race-based extortion as a Tamil. That submission relies on the applicant's evidence that every time he was arrested, his mother paid money for his release. As I have indicated, the Tribunal rejected the applicant's account of his arrests. 24 The Tribunal referred to material to which reference was made by the applicant's representative. That material included a 1994 report from Amnesty International that stated that Amnesty International had received a number of reports of police demanding money from detainees in return for their release. The report also referred to claims made in 1997 that people were being arrested and detained by the police for the sole reason of blackmailing their families into paying bribes to have them released. 25 The Tribunal said that with regard to the threat of the applicant being arrested and detained by the police for the purpose of blackmailing his family into paying bribes to have him released, the independent evidence indicated that such extortion by police officers was neither encouraged nor condoned by the Sri Lankan Government. The Tribunal considered that while the Sri Lankan Government condones legitimate security measures, that is, detaining Tamils in Colombo, there is nothing in the independent evidence available to the Tribunal to suggest that it encouraged or condoned police or criminal gangs engaging in extortion. 26 The Tribunal observed that, in considering whether the government of an applicant's country of nationality is powerless to protect an applicant from private persecution, the test is not whether the country of nationality is able to guarantee protection against persecution, but first, whether the government of the country of nationality will extend to the applicant the same degree of protection as that accorded to any of its other nationals and second, whether it will provide the applicant with a level of protection sufficient to remove a real chance of persecution in the country in question by the private group concerned. The Tribunal referred to the decision of the Full Court in Minister of Immigration and Multicultural Affairs v Prathapan (1998) 156 ALR 672 to 681. 27 The Tribunal did not accept, on the basis of the evidence before it, that the Sri Lankan Government would provide the applicant with any lesser degree of protection against extortion by police officers or criminal gangs than any other citizen of Sri Lanka. The Tribunal also considered that the applicant would be provided with a level of protection sufficient to remove a real chance of his being persecuted by reason of extortion following detention as a Tamil. The Tribunal was not satisfied that the applicant had a well founded fear of being persecuted for a Convention reason if he returned to Sri Lanka. 28 In his amended application to this Court, filed today without objection, the applicant relied on three grounds as follows:

30 The statement, which exceeded 7 pages, contained the following passage: "In Colombo, the continuous murder of the late President (sic) made it impossible to lead a normal life in Colombo. The CID officers arrested Tamil youths and I had been taken numerous times and was released after I paid them some money for my release. It became a practice for the police officers to arrest Tamil youths living in Colombo in order to earn some money for their living. The problems were that different officers were transferred in and out of Colombo every other day or month. The new officers arrested us without us without knowing that I had been cleared the previous day."

31 In written submissions made to the Tribunal by the solicitors for the applicant, a number of contentions were advanced. The contentions were advanced under a number of headings. The headings relevant to the present issue were firstly: "The risk Mr Muthasamy faces from extortion as a Tamil", and secondly: "Extortion as persecution - objective risk irrespective of any credibility finding".

32 Under the first heading, the following claims were made: "The section of this submission on extortion (following) shows that Mr Muthusamy's claims of harm cannot be dismissed because he may have had some indicia of settlement in Colombo. He states that not only has he been interrogated about LTTE activities, but also has been a victim of race-based extortion as a Tamil, and detention. His status as a young Tamil is not in dispute. He has given evidence that his captors wish to extort money whenever an arrest was made. His mother paid for his release and it was believed that every time he was arrested, the money could be got. Without the satisfaction of the demands of Mr Muthusamy's captors, would he have been detained taking with it the risk of torture or other serious mistreatment in prison, events well known to the Tribunal?"

33 Under the second heading, the following relevantly appeared: "It is my submission that the Sri Lanka authorities are able to exploit people such as Mr Muthusamy because of his Tamil ethnicity and the relative lack of protection afforded to Tamils by the Sri Lanka Government. If extortion itself is being practised for a reason that includes a Convention reason, the action in its setting may nonetheless be relevantly persecutory in conduct. I enclose pages … of the Sri Lanka Monitor from January 1997 to January 1998 which indicate that: 1. There have been disappearances of Tamils in Colombo since 1995; 2. Tamils are subject to arbitrary arrest seemingly for no other reason than their ethnicity; 3. Many people who are arrested in this way are tortured in police custody; 4. Extortion of Tamils by security forces is common. In 1994 Amnesty International had: "received disturbing number of reports of police demanding money from detainees in return for their release. Some people may have been arrested solely to extort money in this way because the police believe they come from a wealthy family. In most cases former prisoners who have paid money are reluctant to speak about the experience because of the embarrassment and fear of reprisals."

There is further evidence to this. President Kumaratunge has been reported to have admitted being aware "of innocent Tamils being detained by security forces for ransom". There is also information about police and/or police imposters robbing Tamils of valuables during identity checks and police raids of Tamil lodges." [footnotes omitted] 34 Then, after referring to an extract from a Danish Immigration Service report, the submission went onto say as follows: "DFAT reported in 1997 that claims of bribes being paid for the release of suspects are plausible in the Sri Lankan context and the problem became so bad that by April 1998 the Government was forced to order an investigation. There is no evidence of anything concrete emerging from this investigation.

Something should be said here about the activities of PLOTE and other Tamil groups, which are essential to the Government's security operations. Such connections would, of course provide these groups with the opportunity to extort money from Tamils in their areas of operation knowing that it would be useless for victims to complain to the police because (a) the police themselves are corrupt, and (b) these groups are under police protection."

35 After a further reference to a Tamil language newspaper, the submission concluded as follows: "There is no evidence to suggest other than that the extortion is possible because the "Tamil groups" can threaten to inform the police that the victims are LTTE members or supports and the police can accuse people of being LTTE supporters."

36 The complaint is that the Tribunal did not address the claims made in those passages. I do not consider that that ground is established. It is apparent from the reasons of the Tribunal that the Tribunal clearly addressed those claims. It referred expressly to the claims that were made by the solicitors. Insofar as the claims were based on conduct by the PLOTE or other pro-government Tamil militant group, the Tribunal actually concluded in the following terms: "I do not accept that there is a real chance that the applicant will be persecuted (whether by way of extortion or otherwise) by the PLOTE or by any other pro-government Tamil militant group if he returns to Colombo now or in the reasonably foreseeable future."

37 Insofar as the claim referred to detention by police otherwise and with the assistance of Tamil groups, the Tribunal dealt with the claim in the way that I have referred above. That is, the Tribunal expressed its conclusions that the independent evidence indicates that any such extortion by police officers was neither encouraged nor condoned by the Sri Lankan Government and that the applicant would be provided with a level of protection sufficient to remove a real change of being persecuted in that fashion. 38 In so far as these two grounds are based on ss 476(1)(b) and 476(1)(e) of the Migration Act, reliance was placed on the decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30. In particular, reliance was placed on the proposition that if the Tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material in such a way as effects the exercises of its powers, that may well reveal that it has made an error in its understanding of the applicable law or that it has failed to apply that the law correctly to the facts as found. If that were so, the ground of s 476(1)(a) would be made out. 39 However, such a conclusion is only to be drawn where it is to be inferred from the fact that the Tribunal failed to address a relevant question that the Tribunal misinterpreted the relevant law. The fact that the Tribunal does not deal with the question in a satisfactory manner is not something that brings into play s 476(1)(e). That is to say, making an erroneous finding or reaching a mistaken conclusion is not to make an error of law the kind with which s 476(1)(e) deals - see Yusuf at paragraph [84]. 40 The applicant also relies on the proposition that if the Tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material, it exceeds its authority or powers. If that be so, the person who purports to make the decision would not have had jurisdiction to make the decision and the decision would not be authorised by the Act. In those circumstances s 476(1)(b) or (c) may be attracted. Similarly, the fact that the Tribunal made an erroneous finding or reached a mistaken conclusion, does not necessarily mean that the Tribunal has identified a wrong issue or asked a wrong question, or that it has ignored relevant material or has relied on irrelevant material. 41 In my view the Tribunal clearly addressed the submissions made by the solicitors for the applicant concerning the possibility that the police may detain a Tamil simply for the purpose of extorting money from his family. In so far as that submission was based on the threat by Tamil groups, there was an express finding that there was no real chance of the applicant being persecuted in that way. In so far as the submission was based on conduct by police or security forces independently of Tamil organisations, the submission was answered by the Tribunal by its conclusion that, if there were such a threat, the applicant would be provided with a level of protection sufficient to remove a real chance of his being persecuted in that way. That, it seems to me, is an answer to the first two grounds. 42 The third ground is directed to the question of whether or not there was evidence or other material to justify the conclusion that the Tribunal reached. Section 476(1)(g) is explained by s 476(4): the ground in s 476(1)(g) is not to be taken to be made out unless either of the circumstances set out in ss 476(4)(a) or (b) is satisfied. In the present circumstances, only s 476(4)(b) has application. Thus, the ground in s 476(1)(g) will not be taken to have been made out unless the Tribunal based its decision on the existence of a particular fact and that fact did not exist. 43 The application of s 476(1)(g) and s 476(4)(b) in any particular case requires several steps - see Minister for Immigration & Multicultural Affairs v Al-Miahi [2001] FCA 744 at paragraph [35]. First, a relevant particular fact must be identified. Second, it is necessary to determine whether there was evidence before the Tribunal to justify a finding of that fact. If there was such evidence or other material, the ground cannot be made out. Third, if there was no such evidence it is then necessary to apply the second limb of s 476(4)(b). If there is no evidence on review to show that the fact did not exist then again the ground cannot be made out. Finally, if there is evidence on review to show that the fact did not exist, it is then necessary to apply the first part of s 476(4)(b). That requires an analysis of the Tribunal's reasoning to determine whether its decision was based on that fact. 44 The applicant relies on the conclusion of the Tribunal to which I have referred, namely, that the applicant will be provided with a level of protection sufficient to remove a real chance of his being persecuted by being detained for the purposes of extortion. I will assume for present purposes that that is capable of being a particular fact within the meaning of s 476(4)(b). The first question is whether there was evidence before the Tribunal to justify a finding of that fact. 45 The Minister points to material before the Tribunal that it is said was capable of supporting that conclusion. The question is not whether the Court agrees with the Tribunal's assessment and the weight given to the material but simply whether or not the material before the Tribunal was capable of supporting the conclusion. 46 The Minister pointed to independent country material that was before the Tribunal. First, there was a Department of Foreign Affairs and Trade cable of 24 January 1997. The cable contains the following under the heading, "Treatment in Detention": "All out contacts said that these days they heard very few reports of serious mistreatment in detention in Colombo. The HRTF and INFORM thought this development might be attributable to a combination to improved police practices and greater demand for police accountability. Another factor may be the number of fundamental rights cases where the Supreme Court has found mistreatment in detention by the police to be a violation of an applicant's fundamental rights. In each case, the Court has levied large fines on the police officer concerned. In response to these cases, the Inspector General of Police announced that police facing charges of fundamental rights violations will not be eligible to sit for promotion exams."

47 Secondly, there was a Department of Foreign Affairs and Trade cable dated 15 December 1995 containing the following material: "Since the arrest by authorities in August of a number of security personnel for the unlawful killing of a number of Tamils whose bodies were found floating in various lakes and streams around Colombo, there have been no disappearances of Tamils reported by human rights organisations monitoring such activities. These organisations believe that the message has been received by the security services that the Government will not tolerate illegal activities in the name of security. They believe that receipt of this message extends to a greater acceptance by security forces that torture and unlawful force must not be used against detained persons to extract either confessions or information about others.

……………………… … our assessment, based on discussions, is that while Tamils may be more affected than non-Tamils by the security measures in Colombo designed to counter the LTTE security threat, this does not amount to officially sanctioned discrimination or harassment of Tamil people as a group. Tamil people, like anyone else, continue to have the protection of the law against unlawful activities by security services. The Government's demonstrated willingness to prosecute members of the security services who breach the law is important here, as is the access detained persons and their families have to the government's own Human Rights Task Force (HRTF) and to the International Committee of the Red Cross (ICRC)."

48 In a United States State Department report of February 2001 relating to the year 2000 in relation to Sri Lanka, the following appears:

"The Government respects constitutional provisions for an independent judiciary. Through its rulings, the judiciary continued to exhibit its independence and to uphold individual civil rights, although the Supreme Court Chief Justice, in an attempt to reduce the Court's workload, limited the fundamental rights cases that the Court examined, preventing some torture victims from obtaining redress.

For the past 17 years the Government has fought the Liberation Tigers of Tamil Eelam (LTTE), an insurgent organisation fighting for a separate, ethnic Tamil state in the North and East of the country. The conflict has claimed over 62,000 lives. In 1999, the Government forces took LTTE controlled areas North and West of Vaviniya but counter attacks started in November 1999 erased most Government gains. In January, the LTTE began a build up on the Jaffna Peninsula and in April captured the important Elephant Pass military base. The clashes left large numbers of civilians dead or wounded and displaced more than 150,000 persons. Although the military halted the LTTE advance towards Jaffna in June, continuing clashes between the security forces and the LTTE killed several hundred more persons on both sides.

The Ministry of Defence controls all security forces (armed forces and police). The 60,000 member police force is responsible for internal security in most areas of the country and it also has been used in military operations against the LTTE. … The more than 15,000 member Home Guards, an armed force drawn from local communities and responsible to the police, provides security for Muslim and Sinhalese village communities in or near the war zone. The Government also arms and appears to direct various anti-LTTE Tamil militias although at times these groups seemed to act independently of Government authority. During the year, some members of the security forces committed serious human rights abuses.

The Government generally respected the human rights of its citizens in areas not affected by the insurgency, but there are serious problems in some areas and the ongoing war with the LTTE continue to be accompanied by serious human rights abuses by both sides of the conflict. Security forces committed extrajudicial killings. In the past, security forces almost certainly killed prisoners captured on the battle field; however, there were no reports of this abuse during the year. The Military and police reportedly tortured detainees, and one person died in police custody. In addition, nine individuals reportedly disappeared from security force custody in Vavuniya and in the east. In the past, persons also have disappeared or have been killed after last being seen near the army's forward defence lines in the north, areas that civilians are ordered by the military to avoid. The circumstances of such disappearances and killings were unclear, and with the many military offensives and forward defence line changes throughout the years, the risk to civilians remains high. The military took some measures to limit civilian casualties during operations, although more than 100 civilians died with hundreds more injured, as a result of military-LTTE clashes. Torture remained a serious problem, and prison conditions remained poor. Arbitrary arrests including short term mass arrests and detentions) continued, often accompanied failure of the security forces to comply with legal protections. ………………………

… The Government in November also established the Prosecution of Torture Perpetrators Unit under the direct supervision of the Attorney General, to prosecute torture cases. In March, authorities arrested five suspects and issued an arrest warrant for another, in connection with the mass graves in Chemmani exhumed in 1999. Several of those arrested received bail. The case has not yet come to trial and it was still pending at the year's end.

The Government did not attempt, as in the past, to use the ER to cover up security force misdeeds; however, the Government arrested one person under the Prevention of Terrorism Act (PTA) to stifle competition with the state telecommunications monopoly. The Government captured or accepted the surrender of at least two LTTE cadres throughout the year (it is widely believed that many LTTE cadres committed suicide to avoid capture).

……………………… Arbitrary arrest and detention are problems. Under the law, authorities must inform an arrested person of the reason for arrest and bring that person before a magistrate within 24 hours. In practice, persons detained generally appear before a magistrate within a few days of arrest. The magistrate may authorise bail or order continued pre-trial detention of up to three months or longer. However, under the ER and the PTA, security forces may detain suspects for extended periods of time without court approval. … ………………………

On January 7 and the 15, security forces detained several thousand Tamils in Colombo and the surrounding suburbs in "cordon and search" operations meant to find LTTE cadres after suicide bomb attacks …. Although authorities eventually arrested fewer than 100 persons, many of those rounded up for questioning spent hours in detention often without access to sanitary facilities.

On March 18th, police at a Colombo check point detained and publicly strip-searched one woman who turned out to be a Singhalese on suspicion of being an LTTE suicide bomber. On May 30, police detained hundreds of Tamils in downtown Colombo for almost five hours of questioning. Approximately 50 of the detainees were taken for photographing and further questioning. In addition to those arrested, most of whom were innocent of any wrong doing sometimes were detained in prisons with convicted criminals. Many lesser incidence of this sort occurred during the year. Tamils complained that they were abused verbally and held for extended periods at the security check points that had been set up throughout Colombo … The government justified the detentions and arrests on security grounds, but many Tamils claimed that the detentions and arrests were a form of harassment. Tamils often suffered arbitrary searches in their homes. ………………………

In July 1998, the President had established the Committee to Inquire into Undue Arrest and Harassment (CIUAH). The Committee, which includes senior opposition party and Tamil representatives, examines complaints of arrest and harassment by security forces and takes remedial action as needed. The Committee received more than 200 complaints between January and August 31. Opinions on the effectiveness of the CIUAH are mixed. Some human rights observers believe that the work of the committee acted as a deterrent to random arrests and helped to alleviate some of the problems encountered by detainees and their families. However, some critics claim that, following initial publicity, the committee's services have not been advertised widely. For example, the fax number of the committee is not in the Colombo telephone directory. Those wishing to connect the CIUAH usually are referred through human rights lawyers or find it by word of mouth. Many Tamils believe the CIUAH does little to deter police agents from stopping them more frequently security force check points in the capital."

49 Then a Department of Foreign Affairs and Trade cable of 11 October 1999 contained the following: "The trends for accountability of security forces personnel for human rights abuses have been positive over the past few years, but the improvement which has taken place has been off a very low base. A small number of criminal prosecutions have gone forward in recent times against police and members of the armed forces for human rights abuses, most notably the conviction of four soldiers and one police officer for the rape and murder of a Jaffna school girl and members of her family in 1997.

In the last few months, criminal action has been instituted against 425 police officers and armed forces personnel named in the Presidential Commissions of Inquiry into disappearances (covering the period 1988 to 1997). Of the 425, 175 have been indicted in the High Court. Non-summary action has also been instituted in magistrates' courts in 60 other cases. There has been one result: a police constable was sentenced to five years imprisonment for abduction."

50 And finally a document entitled "Sri Lanka Moves Against Police Corruption" dated 20 August 1997, contained the following: "President Chandra Kumaratunga will soon order the setting up of citizens' committees in local communities to investigate the plight of detainees. Kumaratunga told state radio and television on Tuesday night she was disturbed by reports that corrupt policeman were demanding bribes to release those taken into custody. "I was furious when I heard about this", she said. "Some policemen are doing this to discredit the government while there are those who are trying to get rich quick." Kumaratunga said that there had been instances when 25,000 to 30,000 rupees was demanded from the families of those taken into custody on suspicion. "When I heard this I went and yelled at everybody in cabinet, not that any minister is responsible for this. But I was very angry. We will not allow this. Of course, there are gentlemen too in the police", she said. Officials said dozens of men and women who did not have identity papers were routinely detained at police and military check points and in and around the capital but most were freed after screening."

51 Counsel for the applicant suggested that that material was not capable of supporting the Tribunal's conclusion. Specific criticism was directed to reliance on the passage in the US State Department report that the government generally respected the human rights of its citizens in areas not affected by the insurgency. It was suggested that Colombo was an area affected by the insurgency. 52 I do not consider that a fair reading of that passage in the context in which it appears supports that contention. The areas affected by insurgency are those that are referred to in the passages that are cited prior to that particular sentence. I consider that the US State Report is fairly capable of being understood as implying that human rights in areas such as Colombo are not affected by the insurgency that is described. 53 It is not for this Court to judge the weight that should be given to the material that I have summarised above. The only question, as I have said, is whether or not the material is capable of supporting the conclusion that the Tribunal reached on the basis of the material. I consider that the material is capable of supporting the Tribunal's conclusion that, in the future, the applicant will be provided with a level of protection sufficient to remove a real chance of being persecuted by being detained for the purposes of extortion. That is an assessment of what is likely to happen in the future. The positive trend, however slight it might be, that can be gleaned from that material is capable, in my view, of supporting the Tribunal's conclusion. It was a matter of fact for the Tribunal. Accordingly, I am not satisfied that the first step necessary to establish the ground of s 476(1)(g) has been made out. It follows that the third ground fails. 54 Some argument was addressed to the conclusion that the Tribunal reached that the applicant does not genuinely hold a subjective fear of being persecuted if he returns to Sri Lanka. That conclusion is a finding of fact. As such, it is arguable that that conclusion was sufficient to dispose of the matter so far as this Court is concerned. In order to establish entitlement to a protection visa the applicant must demonstrate that he has a well-founded fear of persecution for one of the Convention reasons. That element contains both a subjective and an objective requirement. There must be a state of mind, namely fear of being persecuted, as well as a basis, well founded, for that fear - see Chan Yi Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 396. For there to be an entitlement to a protection visa there must be a finding by the Tribunal that the applicant does have a subjective fear of being persecuted if he returns to Sri Lanka. 55 The applicant contended that the finding made by the Tribunal was vitiated by the matters that were relied on as grounds of review before this Court. Having regard to the conclusion that I have reached that those grounds are not made out, the further question does not arise. It may be, however, as I have said, that the finding made by the Tribunal would have been an end to the matter even if those grounds had been made out. Having regard to the conclusion that I have reached it does not seem to me to be necessary to deal with this issue. 56 In my view the applicant has failed to establish the grounds of review relied upon and, accordingly, in my view, the application should be dismissed. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Solicitor for the Applicant McDonells Solicitors

Muthusamy v Minister for Immigration & Multicultural Affairs

At a glance

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Decision date

Before

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Judgment (28 paragraphs)

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Cases Cited (4)