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[2002] FCA 368
respondent. Application dismissed; applicant ordered to pay the respondent's costs.
The Federal Court did not decide the applicant's refugee claim again. It considered whether the Tribunal had made the legal errors alleged by the applicant. Carr J found that the Tribunal had expressly considered whether the arrests were connected to the applicant's Tamil ethnicity, had assessed available State protection and return risks, and had considered the case as a whole. The Court found no reviewable error and dismissed the application with costs.
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2,445 words · generated 01/10/2026
In Nadarajah v Minister for Immigration & Multicultural Affairs [2002] FCA 368, Carr J considered an application for judicial review of a Refugee Review Tribunal decision. The Tribunal had affirmed a delegate's refusal to grant the applicant a protection visa. The Court dismissed the application and ordered the applicant to pay the Minister's costs ([50]; orders).
1 cited instrument linked from this judgment.
The applicant was a Sri Lankan citizen of Tamil ethnicity. He arrived in Australia by boat on 17 April 2001, applied for a protection visa on 23 May 2001, and had that application refused by a departmental delegate on 18 June 2001. He sought Tribunal review the following day. The Tribunal affirmed the refusal on 31 August 2001, and the judicial review application was filed in the Federal Court on 20 September 2001 ([1]).
The applicant's main claim concerned five arrests in Sri Lanka. The Tribunal accepted his evidence as credible ([4]). The first four arrests, between 1993 and 1999, involved alleged breaches of residence-registration requirements. He said he had been detained and released after bribes were paid. One episode, in 1997, involved four days in custody and beatings, after which he was bedridden for a month ([5]-[8]). In the January 2000 incident, he was detained at an army roadblock for part of a day and released after a bribe was arranged ([9]). He said that the police wanted to beat and extort money from him, and that they never charged him ([10]).
Other claims concerned his wife’s experiences with the LTTE, the cancellation of his security-business licence, his fear about obtaining a police report needed for work, his illegal departure, and information he gave Australian Federal Police about the boat owner ([3], [6], [11]-[14]). The Tribunal reviewed country information and concluded that the applicant did not have a well-founded fear of Convention-related persecution. It also concluded that he did not meet the protection-visa criterion in s 36(2) of the Migration Act 1958 (Cth) (Tribunal reasons reproduced at [17], particularly [77]).
The Federal Court application relied on three stated grounds: error of law, lack of jurisdiction, and a decision not authorised by the Act ([18]-[19]). The substantive complaints included failure to consider ethnicity as a cause of the arrests, error about State protection, failure to assess the 2000 detention cumulatively, inadequate consideration of illegal departure and the burden of proof, and failure to make findings about employment-related matters ([20]-[48]).
Carr J dealt with the arguments as alleged review errors, not as an invitation to substitute the Court's view of the protection claim for the Tribunal's view. That distinction is especially apparent in the treatment of the January 2000 incident. The Court accepted that the Tribunal had considered that incident separately, but held that the applicant had not identified legal error in doing so. The detention lasted from 11.00 am until the evening, and there was no claim of mistreatment on that occasion. Whether that amounted to persecution was, in Carr J's view, a factual matter for the Tribunal. The Tribunal's finding was open to it, and the cumulative and seriousness arguments sought merits review ([34]-[37]).
On the ethnicity issue, the applicant relied on country information about human-rights abuses against Tamils and argued that the Tribunal had considered only the trigger for the arrests and the ultimate conclusion, without addressing whether ethnicity was also a cause ([21]-[22]). Carr J rejected that characterisation. The Tribunal had recorded that the registration requirements applied to all citizens and had expressly found that the applicant's race was not a cause of the episodes. It also acknowledged that Tamils might more often attract police attention, but found that these particular arrests followed the applicant's registration failures and that he was not selected for extortion because he was Tamil ([23]). Carr J therefore distinguished Paramananthan and Nagaratnam: in this case the Tribunal had specifically addressed the alleged causal connection ([24]).
The State-protection argument concerned the applicant's contention that the police conduct was effectively persecution by the State, rather than harm from a source against which the State might provide protection ([26]). Carr J read the Tribunal's reasons as making two related findings. First, it found that the officers' actions were criminal conduct motivated by greed, not conduct for a Convention reason. Second, it considered whether protection was available, including the avenues of redress and the country material tendered by the applicant ([27]-[31]). The Tribunal had also noted that the applicant knew of avenues of redress but had not pursued them, citing lack of energy and political connections and fear of retribution ([11], Tribunal reasons at [64]-[67]). Carr J concluded that the Tribunal had understood the protection question and that its findings were open to it on the evidence ([30]-[32]).
The illegal-departure issue was also assessed through the Tribunal's reasons as a whole. The Tribunal had considered the applicant's personal circumstances and distinguished him from returnees described in the country information as vulnerable to repeated arrest. Carr J referred to findings that the applicant had a valid passport, lived in Negombo rather than the north or east, had family there, had not previously been arrested on suspicion of LTTE support, and spoke Sinhalese (Tribunal reasons at [72]-[75]). Although the Tribunal's use of “necessarily” initially raised a concern, Carr J did not read the reasons as applying a burden of proof beyond reasonable doubt. The Tribunal had referred to the inappropriateness of the concept of “onus” in its decision-making and, read fairly as a whole, had considered the evidence and the individual circumstances ([40]-[41]).
Finally, Carr J addressed the Tribunal's failure to make separate findings about the cancelled business licence and the police report. The Court accepted that the Tribunal had not determined those claims individually ([42]). But it found that the Tribunal had considered the broader future-risk question, the principal incidents, country information, treatment of Tamils, bribery and extortion, State protection, and the risk associated with illegal departure ([43]-[49]). In the circumstances, Carr J concluded that separate findings were not required.
The judgment is a decision applying the Refugees Convention framework and the Migration Act provisions identified in its reasons. It does not purport to establish a comprehensive new test for refugee status or State protection.
The Tribunal's decision had relied on the Refugees Convention as amended by the Refugees Protocol and concluded that the applicant did not satisfy the protection criterion in s 36(2) of the Migration Act (Tribunal reasons at [16]-[17], [77]). In reviewing that decision, Carr J referred to Article 1A(2) of the Convention and framed the relevant protection question as whether the applicant was unwilling, owing to a well-founded fear of persecution for a Convention reason, to avail himself of the protection of Sri Lanka ([30]). The application also pleaded error of law under s 476(1)(e) ([18]).
The judgment's practical contribution within the supplied text is its application of those principles to the Tribunal's actual reasoning. It treats the existence of a specific finding on ethnicity as important to whether the Tribunal addressed the alleged Convention nexus ([23]-[25]). It also illustrates that an argument about the weight or cumulative effect of evidence does not, without an identified legal error, establish a review ground. Carr J characterised the challenge to the 2000 incident as a request for merits review ([37]).
The judgment does not set out a general rule that failure to pursue a complaint always defeats a claim of State-protection failure. Its reasoning is tied to this record: the Tribunal found avenues of redress available, assessed country information, and considered the applicant's explanations for not using those avenues ([29]-[32]). Nor does the decision state that administrative decision-makers need never make findings on every issue raised. Its conclusion about the licence and police-report claims rests on its assessment that the Tribunal considered the central future-risk question and the case as a whole ([45]-[49]).
The Court distinguished Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 and Nagaratnam v Minister for Immigration and Multicultural Affairs (1999) FCA 176 because the Tribunal in this case expressly addressed whether ethnicity caused the arrests ([22]-[24]). The judgment itself does not describe a change in the law before and after the decision. It applies those cited authorities by distinguishing the factual and reasoning circumstances before it.
At [23], Carr J emphasised that the Tribunal had found “the applicant's race was not in any way a cause of these episodes.” In plain English, the Court did not accept that the Tribunal had overlooked ethnicity. The Tribunal had addressed it and reached a factual conclusion against the applicant on that part of the claim.
At [24], Carr J said that this case was “very different” from Paramananthan and Nagaratnam because the Tribunal had specifically considered whether Tamil ethnicity was one reason for the arrests. In plain English, the earlier decisions cited by the applicant did not establish error where the Tribunal had actually made the finding said to be missing.
At [31], Carr J said that the Tribunal considered the level of Sri Lankan government protection sufficient and that there could not be a failure of State protection where the applicant had not sought it. This passage summarises the Court's reading of the Tribunal's approach in this case. It should be read with [29]-[32], which describe the Tribunal's consideration of evidence, available avenues, and the applicant's circumstances.
At [37], Carr J described the cumulative and seriousness arguments as seeking review of the merits. In plain English, the Court considered that the applicant had not identified a legal defect in the Tribunal's treatment of the 2000 detention, but was challenging the way it evaluated the evidence.
At [41], Carr J held that the word “necessarily” did not show that the Tribunal had imposed an incorrect burden of proof when its reasons were read as a whole. In plain English, a potentially concerning word was not decisive when the rest of the reasoning showed consideration of the relevant standard and material.
At [49], Carr J concluded that the Tribunal had “asked itself the right questions” and had neither erred in law nor committed jurisdictional error. This is the broad conclusion that led to dismissal, but it rests on the particular complaints and record examined in the preceding paragraphs.
The decision is most directly relevant to judicial-review arguments that a refugee decision-maker failed to consider whether ethnicity was a cause of repeated arrests. In Nadarajah, the Tribunal did not merely identify a non-Convention trigger. It also expressly found that Tamil ethnicity was not a cause and explained why it reached that view ([23]-[25]). The distinction Carr J drew from Paramananthan and Nagaratnam depends on that express treatment.
The judgment may also be relevant where a Tribunal has separated a short detention from earlier, more serious incidents. Here, the 2000 detention lasted less than a day, involved no claimed mistreatment, and ended after a bribe. Carr J considered it open to the Tribunal to assess the incident separately and not to find persecution, while treating the contrary argument as a merits challenge ([34]-[37]). The decision does not establish that cumulative assessment is never required; it records the Court's conclusion on this case's asserted review ground.
A further relevant pattern is where an applicant argues that police misconduct demonstrates persecution or lack of State protection. The case shows the importance, in the Court's analysis, of what the Tribunal found about the officers' motives, available avenues of redress, country information, and the applicant's explanation for not seeking protection ([27]-[32]). It does not resolve every situation involving misconduct by State employees.
The decision also concerns a return-risk claim based on illegal departure and possible identification as a Tamil returnee. The Tribunal compared the applicant's circumstances with country information describing a particular profile of vulnerable returnees. Carr J relied on the Tribunal's findings about identity documents, residence, language, family location, and past arrests ([39]; Tribunal reasons at [72]-[75]). These details are examples of individualised assessment in this decision, not a universal checklist stated by the Court.
The judgment supplied here contains no subsequent judicial decisions and does not describe later treatment of Nadarajah. It is therefore not possible, on this source alone, to say whether later courts followed, distinguished, approved, or criticised its reasoning.
The precedent relationships that can be extracted from the text are limited to the two decisions Carr J discussed: Paramananthan and Nagaratnam. The Court distinguished them, explaining that the Tribunal in Nadarajah had specifically addressed whether ethnicity caused the arrests ([22]-[24]). No later-case citation or history appears in the supplied judgment.
For research purposes, that limitation matters. This judgment alone supports an account of Carr J's reasoning in 2002, but cannot establish the present status of that reasoning, its later judicial development, or whether a subsequent court has confined it. Those questions require later sources not provided in the judgment text.
The judgment leaves several matters unanswered on the face of the supplied reasons. First, it does not formulate a general test for when misconduct by police officers should be characterised as persecution by the State rather than criminal conduct by individual officers. Carr J records the Tribunal's factual finding that the officers acted as criminals, and accepts the Tribunal's consideration of available protection on this record ([27]-[32]). The judgment does not determine how a different evidentiary record, or different findings about official involvement, would affect that analysis.
Second, the reasons do not establish a general rule about when separate incidents must be assessed cumulatively. Carr J accepted that the Tribunal had not considered the 2000 incident together with earlier episodes, but held that no legal error was shown in the circumstances, particularly given the Tribunal's findings about the earlier incidents and the short, non-violent detention in 2000 ([34]-[37]). The limits of that conclusion are not explored.
Third, the judgment does not decide whether the business-licence cancellation or the police-report concern could, on other facts, independently support a protection claim. Carr J accepted that the Tribunal did not make specific findings on those matters, but held that it was not obliged to do so in this case because its overall reasons addressed the main future-risk question ([42]-[49]).
Finally, the decision gives no later history. The supplied text cannot answer how subsequent courts have treated the judgment's approach to ethnicity, State protection, cumulative harm, or administrative reasons read as a whole.
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introduction 1 This is an application for an order of review of a decision of the Refugee Review Tribunal, made on 31 August 2001, by which the Tribunal affirmed the decision of a delegate of the respondent not to grant a protection visa to the applicant. The applicant, who is a citizen of Sri Lanka of Tamil ethnicity, arrived by boat in Australia on 17 April 2001. On 23 May 2001 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (Cth) ("the Act"). On 18 June 2001 a delegate of the respondent refused to grant a protection visa and on 19 June 2001 the applicant applied to the Tribunal for review of that decision. The application was filed in this Court on 20 September 2001.
the applicant's claims and the Tribunal's decision 2 The applicant was born in Colombo in 1965. When he was five years old, his family moved from Colombo to Point Pedro on the Jaffna Peninsula. In 1989 he was detained by the army, which had a camp near his house. The applicant and a few others were singled out, questioned and beaten. He escaped and was not recaptured. 3 In 1991, on the death of his father, the applicant went to Negombo for the funeral. Negombo is a town approximately 30 kms north along the coast from Colombo. In Negombo he met and married his wife with whom he returned to Point Pedro. His wife is a member of a small ethnic group which settled in Sri Lanka from India some 400 years ago. She does not speak Tamil and was educated in Sinhalese. She had problems in Point Pedro from members of the Liberation Tigers of Tamil Elaam ("LTTE"). The LTTE suspected that the applicant's wife was a spy and took her in for questioning three times. Each time she was released after the applicant interceded on her behalf. The applicant's wife became afraid of living in Point Pedro and they moved back to Negombo in February 1991. One part of the applicant's claims for refugee status was based on the incidents in Point Pedro before February 1991. The Tribunal rejected those claims and they are not the subject of this application for review. 4 The main part of the applicant's claim to refugee status was the fact that he had been arrested on five occasions. The Tribunal accepted the applicant's evidence as credible. 5 The first occasion was in 1993. The applicant was arrested by police because three days earlier he had moved house, but had not registered his new address. The police held him for two or three days, then his wife paid a bribe to the police and he was released without charge. The applicant stated that it was common for police to arrest Tamils for the purpose of extorting money from them for release. The applicant agreed with the Tribunal that if the police had genuinely suspected him of LTTE involvement, they would not have released him. 6 The second arrest was in 1995 for living at a residence at which he was not registered. The applicant also stated that the police suspected him of involvement with the LTTE because he owned a security business and the police considered that he could provide LTTE cadres with accommodation or even employment. The applicant stated that the police informed the Ministry of Defence about his arrest and his security business. The Ministry of Defence had then cancelled his licence to operate a security business. 7 The third arrest was in 1997, again because of problems with the applicant's residency registration. On this occasion, the applicant's brother was registered as living in the applicant's house, but when the army came to his house in the evening for a security check, his brother was not at home because he worked on the night shift at a distant factory and had not returned home from work. The army took the applicant into custody and held him for four days, during which time he was beaten. Once again, he was released after his wife paid a bribe to the police. The applicant was bedridden for one month after his release. 8 The fourth arrest occurred in September 1999. On that occasion, the applicant was in the process of moving from one house to the other (and was paying rent for both houses), but had not registered his move to the second house. He was detained for two days and released after paying a bribe. 9 The fifth arrest was in January 2000. The applicant was returning to Negombo from Colombo and was stopped at an army road block for a security check. He was detained at 11.00am and released, after paying a bribe, in the evening of the same day. His business partner arranged for the payment of the bribe. 10 The applicant told the Tribunal that all the Sri Lankan police wanted to do was to beat him and extort money from him. They never filed a case against him because they were, so the applicant intended, well aware that they had no evidence. 11 The Tribunal asked the applicant why he did not seek recourse against the actions of the corrupt police. He replied that, as a Tamil, he could not take any steps because he had no political influence and because he was afraid that he would suffer retribution. The Tribunal put to the applicant some independent evidence about the policy of the Sri Lankan government towards harassment of Tamils and corruption by security forces and the avenues for redress of such harassment and corruption. The applicant agreed that he had seen reports in the newspapers about such actions but said that he did not have the power or energy to mount such a case and that he feared for his life if he did so. 12 The applicant also relied upon the fact that he had given information to the Australian Federal Police about the owner of the boat on which he had travelled to Australia. The owner of the boat had also travelled on it with the applicant and others. The applicant said that the owner of the boat was a politician in Sri Lanka with powerful connections to the Sri Lankan government. The owner had made threats against the families of those on the boat if they said anything adverse to the police. The boat owner had taken his National Identity Card. One of the people who had travelled on the boat had been returned to Sri Lanka and had told the agent who had arranged the applicant's travel that the applicant had spoken to the police about the boat owner. The agent had gone to the applicant's house and forced his wife to pay the applicant's passage money. The applicant explained that although he had raised 350,000 rupees for the trip, he had not given it to the agent because he was supposed to pay the agent only when he landed in Australia. 13 Finally, the applicant claimed that he would prosecuted in Sri Lanka for his illegal departure from that country. His photograph had been taken for a newspaper article which described his arrival in Australia, which had been published in a newspaper in Sri Lanka. His wife had cut the article out of the newspaper and kept it. The police had questioned her about the photograph when they had gone to the house after the detention of one of his brothers. 14 At the conclusion of the hearing before the Tribunal the applicant's adviser sought, and was granted, the opportunity of making further written submissions to it. In those written submissions the applicant's adviser dealt with information concerning the situation in Sri Lanka for Tamils, particularly in relation to arrest, detention, mistreatment or torture by police officers and the effectiveness of steps taken by the Sri Lankan government to provide protection against and redress for such instances of mistreatment. The submissions also dealt with the likelihood of the applicant experiencing mistreatment if he were to return to Sri Lanka particularly as his illegal departure would become known on his return. 15 The Tribunal referred to the political history and the current situation in Sri Lanka. It also referred to and reviewed numerous sources of independent country information published during the period 1995 to 2001 on the treatment of Tamils in Sri Lanka, bribery and extortion in that country, and the likely consequences upon return to Sri Lanka for those who had departed illegally. 16 It then set out its understanding of the legal principles applicable when determining whether an applicant is a person to whom Australia has protection obligations under the Refugees Convention. No complaint was made by the applicant about the correctness of the Tribunal's legal analysis at this stage of its reasoning. 17 I shall not attempt to summarise the Tribunal's findings and reasons. I set them out below: "FINDINGS AND REASONS 56. I am satisfied that the applicant is a national of Sri Lanka, which is therefore the country of reference for this matter. 57. The applicant's claims can be broadly categorised into claims of persecution by the security and police authorities of Sri Lanka, and persecution by the LTTE. Persecution by LTTE - findings 58. I do not propose to consider whether the applicant's claims of harassment by the LTTE on the basis of an alleged suspicion about his Sinhalese-speaking wife constitute persecution within the meaning of the Convention. The applicant has not resided in LTTE-controlled areas since moving to Negombo in February 1991. For the reasons which follow, I do not consider that the applicant has a well-founded fear of persecution by the Sri Lankan authorities and accordingly there would be no need for the applicant to relocate to LTTE-controlled territory to avoid such persecution. I find that the chance that the applicant would be persecuted for a Convention reason by the LTTE in the reasonably foreseeable future is remote. Persecution by Sri Lankan security forces - findings army detention and mistreatment, point pedro, 1989 59. For the same reason, that is, that there is no reason for the applicant to return to areas of conflict and, therefore, to come to the attention of the army in Point Pedro, I consider the chance that the applicant would again be detained or mistreated as he claims happened in 1989 to be remote. I am fortified in this view by the fact that the applicant did not experience any repetition of such mistreatment for the remainder of the time that he lived in Point Pedro before moving to Negombo. arrests in negombo, 1993, 1995, 1997 and 1999 60. Each of the episodes of arrest on which the applicant relies to support his claim to refugee status, with the exception of the 2000 incident for which I have made separate findings, share a number of common features and accordingly I make findings which are equally applicable to each episode. 61. Those features are: That the initial interest of the authorities was triggered by the applicant's failure to comply with some aspect of the mandatory residence registration scheme which operates in Sri Lanka and which binds all citizens, not just Tamils, that the applicant's release on each occasion was effected by the payment of bribes to the police; and that the applicant made no attempt to invoke the protection of the State which was available to him. 62. The applicant agreed at the hearing that the police did not genuinely suspect him of support for the LTTE, that all the police wanted to do is to beat him and extort money from him. This conclusion is supported by the fact that the police never charged the applicant, even though he was apparently in breach of the registration requirements, and that the applicant was in fact released each time after the payment of a bribe. I am satisfied that these episodes of detention and mistreatment were not for a Convention reason, whether imputed political opinion or race or any other ground, but rather were criminal acts on the part of corrupt police and motivated by greed. 63. In particular, I am not satisfied that the applicant's race was in any way a cause of these episodes. Although it may be that Tamils are more often targeted for police attention, because the LTTE insurrection is Tamil-based, each of the episodes involving the applicant were triggered by his own failure to comply with the registration requirements. He was not, in any of these four instances, chosen as a target of criminal extortion because he is Tamil. He was an available target for criminal extortion by the police because his failures to comply with the law had put him in police custody. This is not to suggest that the mistreatment experienced by the applicant could be described as "prosecution" rather than persecution, in the sense that the police acted this way in response to the applicant's illegal activities. I have already concluded that the police actions, after they had taken the applicant into custody, were criminal. Rather, my finding is that the initial reason for the applicant coming to the attention of the police was not Convention-related, it was solely due to the applicant's failure to comply with registration requirements. 64. There is a further basis for my finding that these four episodes are not Convention-related persecution. I am not satisfied that any of these episodes demonstrates a failure of State protection. Significant to this finding is the applicant's evidence that he never made a complaint about, or sought redress for, the criminal acts of the police. The applicant stated that he was aware of the avenues of redress available to him, and that the police never charged him in relation to a suspicion of LTTE support because they knew there was no evidence and they would not be able to win such a case. His explanation for failing to seek the protection of the State was that he did not have the energy or the political connections to mount such a case and that he feared retribution if he did. 65. I have considered the independent information set out earlier in this decision concerning the avenues of State protection available in Sri Lanka. I have also considered the submissions made by the applicant's adviser, and the sources cited in those submissions, concerning the effectiveness of those avenues of redress. Some of the sources cited by the adviser are relatively dated and a more [sic, presumably "recent"] report indicates that the Sri Lankan government has made "some impressive gains" in respect of human rights in recent years. Further, many of the criticisms made in the cited material are directed at abuses which occur in areas directly involved in the civil conflict, which does not apply to the applicant. 66. The applicable legal principle, as set out above, is that the protection which a State must provide in order for it to be "effective" need not amount to an absolute guarantee of safety from harm, and that there cannot be a failure of State protection where a government has not been given the opportunity to respond to a form of harm in circumstances where protection might reasonably have been forthcoming. 67. Accordingly, even if the harm experienced by the applicant was Convention-related, I am not satisfied that there has been a failure of State protection reasonably available to the applicant in this matter arrest (army roadblock), negombo, 2000 68. In relation to the incident where the applicant was detained at an army roadblock in January 2000, I repeat my findings above that the payment of a bribe for his release does not show a Convention nexus, nor that there can be said to have been a failure of State protection. 69. I also note that the applicant was detained for a relatively short period of time, less than a day, and was released unharmed. Although this was no doubt distressing to the applicant, and could reasonably be perceived as harassment, nevertheless I am not satisfied that the harm suffered, being brief detention and the payment of a bribe, is serious enough to amount to persecution within the meaning of the Convention. 70. Finally, the brief detention at an army roadblock appears to constitute a legitimate security measure in the context of the vicious civil conflict which has persisted in Sri Lanka for so many years and which frequently involves LTTE terrorist bombings in places outside the areas of conflict, including Negombo. 71. I am not satisfied that the applicant's brief detention and the payment of a bribe demonstrates a failure of State protection nor that it is Convention-related, nor that the level of harm suffered amounts to persecution. illegal departure and failed asylum application 72. I am not satisfied that the applicant's fear of persecution for his illegal departure is well-founded. I do not accept that the applicant's return to Sri Lanka would necessarily alert the authorities to his illegal departure, given that he is able to obtain a lassez-passer on which to re-enter Sri Lanka, in which case the lack of an exit stamp in his passport would not require explanation. I have also examined the photograph printed in some newspapers, including Sri Lankan newspapers, which the applicant says depicts him as one of the people rescued from the bush in north-west Western Australia. I do not accept that the applicant could be identified from that picture on his return to Sri Lanka. 73. I do accept that the applicant's wife clipped from the newspaper reports of the applicant's arrival in Australia and that the police have confiscated those clippings from her. However, this raises the other issue in relation to the applicant's illegal departure for Sri Lanka, which is that the applicant has breached Sri Lankan law in making an illegal departure. Should the applicant be questioned in relation to his illegal departure, any prosecution pursuant to a law of general application does not constitute persecution for a Convention reason. 74. There is no evidence before me that the Sri Lankan authorities impute to persons who depart illegally from Sri Lanka or who unsuccessfully apply for asylum overseas a political opinion in support of the LTTE. The accounts of mistreatment of returnees which the applicant's adviser has put forward concern the difficulties faced by returnees who have no entitlement to remain in Colombo, because their residence is registered in other areas, generally the north and east, of Sri Lanka and whose identity documents are confiscated, which renders them vulnerable to repeated arrest for failing to be able to produce proof of identity. Such persons frequently fit, to a greater or lesser degree, the "profile" of Tamils suspected of support of the LTTE, relevantly here, born and previously resident in LTTE- or former LTTE-controlled areas, previously arrested on suspicion of LTTE support, and unable to speak Sinhalese. The applicant is not in this position as he has a valid passport with which to verify his identity and to obtain another NIC, and in any event his place of residence is Negombo, not the north or the east. The applicant does not possess the "profile" of Tamils suspected of LTTE support which might otherwise render him vulnerable to police attention. That is, the applicant does not come from LTTE-controlled areas, he has family in the Negombo, he has not previously been arrested on suspicion of support of the LTTE (as I have found above, and as the applicant agreed at the hearing), and he speaks Sinhalese. 75. I am not satisfied that the applicant has a well-founded fear of persecution for a Convention reason by reason of having left Sri Lanka illegally or for having applied for asylum overseas. information to australian federal police re boat owner 76. I do not accept that any harm which the applicant may experience as a result of having given information to the Australia Federal Police in relation to the owner of the boat which illegally brought him to Australia would be for a Convention reason. I am satisfied that any such harm would be purely retributive and personal. In any event, I am satisfied for the reasons previously given that the applicant has available to him avenues of State protection against any such harm. CONCLUSION 77. Having considered the evidence as a whole, I am not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa."
grounds of the application 18 The applicant relied upon three grounds of review in his amended application. First, he contended that the Tribunal's decision involved an error of law involving the incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal - see s 476(1)(e) of the Act. This ground was followed by some 3˝ pages of what was said to be particulars. The first particular, in the form of some twelve "bullet points" contained a recitation of what the Tribunal was said to have found. There then followed a further eleven numbered paragraphs setting out what the applicant claimed were errors of law on the Tribunal's part, including various matters which the applicant claimed that the Tribunal had failed to address. 19 The second and third grounds of review were, respectively, that the Tribunal had made its decision without jurisdiction and that its decision was not authorised by the Act. In respect of each of those two further grounds the applicant relied upon the same particulars as were pleaded in relation to the first ground.
my reasoning 20 The applicant's written and oral submissions generally re-iterated, and to some extent expanded upon, the matters set out in paragraphs (ii) to (xii) of the particulars of the first ground of the application. The applicant's case can be distilled to several issues which I deal with below.
Failure to consider whether there could be a number of reasons for the police actions in arresting the applicant, one of which was his ethnicity
my reasoning 21 Mr H Christie, counsel for the applicant, referred me to independent country information (which the Tribunal had set out in its reasons) to the effect that human rights abuses against Tamils were widespread throughout Sri Lanka and that Tamils were detained for blackmail and bribery. He said that the Tribunal had not said that this evidence was out-of-date or not relied upon. There was, so he submitted, no evidence that Sinhalese were subjected to extortion. 22 Mr Christie submitted that the Tribunal had made the same type of error as had been identified by Full Courts of this Court in Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 and Nagaratnam v Minister for Immigration and Multicultural Affairs (1999) FCA 176. That is, the Tribunal should have considered, but had not considered, whether there was a causal connection between the four arrests and the applicant's Tamil ethnicity. The Tribunal, so it was put, had only looked at the two ends of the matter, namely "the trigger" and the conclusion. 23 I do not think that the Tribunal made this error. I refer to paragraphs numbered 61 to 63 of the extract from the Tribunal's reasons set out above. The Tribunal noted that the initial interest of the authorities was triggered by the applicant's failure to comply with some aspects of the mandatory residence registration scheme which operated in Sri Lanka and which, so the Tribunal noted, binds all citizens not just Tamils. It expressed its satisfaction that these episodes of detention and mistreatment were not for a Convention reason whether imputed political opinion or race or any other ground, but rather were criminal acts on the part of corrupt police and were motivated by greed. In that context, it is the first two lines of paragraph numbered 63 which give the lie to the applicant's first complaint. The Tribunal expressed its satisfaction that the applicant's race was not in any way a cause of these episodes. The Tribunal acknowledged that it may be the case that Tamils are more often targeted for police attention because the LTTE insurrection is Tamil-based, but found that each of the episodes was triggered by the applicant's failure to comply with the registration requirements. It found that the applicant was not, in any of the four instances, chosen as a target of criminal extortion because he is Tamil. 24 In my view, this case is very different from Paramananthan and Nagaratnam because the Tribunal here has specifically addressed the question whether one of the reasons for the applicant's arrest was his Tamil ethnicity. It found specifically, as a fact, that such was not the case. 25 In my opinion there is no substance in this particular.
Persecution by the State 26 The applicant submitted that the Tribunal had erred in law by relying upon certain authorities relating to the matter of effective protection which it cited at paragraph numbered 52 of its reasons (not reproduced above). Counsel for the applicant submitted that those authorities were not concerned with a situation where the persecution was conducted by persons employed by the State and acting in the course of that employment. Those cases involved Sri Lankans who had fled and been granted citizenship in European countries, but were persecuted there by the LTTE. The Tribunal had erred in law by applying those authorities to the present matter. There needed to be, so the applicant contended, a clear distinction between human rights abuses by persons "outside the State" and those which were carried out with sufficient frequency by employees of the State. The present case was not a failure of State protection but rather persecution by the State.
my reasoning 27 As I read the Tribunal's decisions, it first made a finding that the conduct of the police officers was not for a Convention reason. I have dealt with that immediately above. In the latter part of paragraph numbered 63 of its reasons the Tribunal rejected the suggestion that the mistreatment experienced by the applicant could be described as "prosecution" rather than persecution. It referred to its conclusion that the police actions, after they had taken the applicant into custody, were criminal. 28 The Tribunal then moved on, in paragraph numbered 64, to a "further basis" for finding that these four episodes were not Convention-related. That reason had to do with the matter of State protection. 29 At paragraph numbered 65 of its reasons the Tribunal stated that it had considered the independent information which it had set out earlier in its reasoning concerning the avenues of State protection available in Sri Lanka. It also made a critical assessment of the country evidence provided by the applicant in supplementary submissions. It referred to a report which indicated that the Sri Lankan government had made some impressive gains in respect of human rights in recent years. The Tribunal also distinguished the circumstances of the present matter from the circumstances of many of the criticisms made in the material submitted on behalf of the applicant, on the basis that the abuses identified in the latter occurred in areas directly involved in the civil conflict. 30 I do not think that the Tribunal erred in its approach to this issue. In terms of Article 1A(2) of the Convention, the question was whether the applicant was, owing to a well-founded fear of persecution for a Convention reason, unwilling to avail himself of the protection of Sri Lanka. From paragraph 51 of the Tribunal's reasons it can be seen that it understood that where the protection of the applicant's country was available and there was no ground based on well-founded fear for refusing it, the person concerned was not in need of international protection and was not a refugee. 31 In my view, it is sufficiently clear from the Tribunal's reasons that it considered that the level of protection provided by the Sri Lankan government was such that it would protect the applicant from persecution, and that there could not be a failure of State protection where the applicant had not sought that protection. 32 In my opinion, the Tribunal has not been shown to have erred in law in the manner contended for. It found that the police were not acting in the course of their employment, but were acting as criminals. This was a finding of fact by the Tribunal that this was not persecution by the Sri Lankan State. The Tribunal considered the degree of State protection available and its findings were open to it on the evidence.
Failure to consider the January 2000 incident on a cumulative basis 33 The applicant submitted that this incident had to be considered in relation to the previous incidents which had involved longer detention and serious mistreatment. The fact that on this occasion he was able to arrange his release more speedily by payment of a bribe, did not alter, so it was put, the character of the conduct of the police. Furthermore, by any standard the conduct on this occasion clearly amounted to persecution.
my reasoning 34 It is true, as the respondent acknowledged, that the Tribunal did not consider this incident in the context of the earlier episodes. 35 However, I accept the respondent's submission that the Tribunal, having found that the applicant's race had not been in any way a cause of the earlier episodes of corrupt police conduct, did not err by considering the final incident independently. 36 The evidence was that the applicant had been detained from 11.00am until the evening of the day in question. The Tribunal so found. There was no claim to any mistreatment. Whether that detention was serious enough to amount to persecution was a matter of fact for the Tribunal. In my view, it was open to the Tribunal on the evidence to find that, in the circumstances of an army security road block, the detention and extraction of a bribe was not sufficient to amount to persecution. 37 In my view, by raising these two issues (the cumulative point and the seriousness point) the applicant is seeking review of the merits of the Tribunal's decision. I do not think that any legal error in that regard on the Tribunal's part has been identified.
Illegal departure 38 The applicant complained that the Tribunal did not consider his fear, by reference to his past treatment at the hands of the police, that he would again be mistreated as a Tamil who had come to the attention of the authorities on return to Sri Lanka (for leaving illegally) and that this would provide an opportunity to mistreat him and extract a bribe from him. The applicant submitted that the Tribunal had erred by failing to determine whether this fear was well-founded and would be in part simply because he was a Tamil, not because he had broken the law or for reasons of political opinion.
my reasoning 39 At paragraphs 41 to 44 of its reasons (not reproduced above) the Tribunal reviewed the Sri Lankan legislation relating to illegal departure and a range of independent country information on that subject. In paragraphs numbered 72 to 75 of its reasons, set out above, the Tribunal specifically addressed the applicant's personal circumstances. It may have used unhappy phrasing when it stated "I do not accept that the applicant's return to Sri Lanka would necessarily alert the authorities to his illegal departure …", but a reading of the Tribunal's reasoning as a whole shows that it distinguished the applicant's particular circumstances from those of persons who fitted the profile of Tamils who had departed illegally from Sri Lanka and were returned to that country. In the latter part of paragraph numbered 74 the Tribunal set out its findings and reasons for its conclusion that the applicant did not fit such a profile. In the context of having previously found that the applicant had not suffered persecution for a Convention reason, and in particular no persecution in any way related to his race, I do not think it was an error of law on the Tribunal's part to fail to consider whether he would suffer persecution on re-entry to Sri Lanka (due to illegal departure) simply because he was a Tamil. There was no suggestion of this in the independent country information to which the Tribunal referred at paragraphs 41 to 44 of its reasons.
Onus of proof 40 The applicant contended that the Tribunal had erred in law as to the meaning of "well-founded" in the Convention definition of a refugee, by equating the term "with the probability of persecution occurring or even with the applicant having to prove his claims that persecution would occur beyond reasonable doubt". The applicant referred to the passage in the Tribunal's reasons containing the word "necessarily" in paragraph numbered 72 of its reasons. Counsel for the applicant then pointed to the fact that the Tribunal had also stated that it accepted that the Sri Lankan police had confiscated newspaper clippings from the applicant's wife showing that the applicant had come to Australia amongst a group of boat people. This, so it was contended, clearly indicated a mistaken approach as to the test to be applied.
my reasoning 41 The use of the word "necessarily" raises an initial concern. However, my reading of the whole of the Tribunal's reasons on this point does not indicate that the Tribunal was imposing a burden of proof upon the applicant, let alone one of beyond reasonable doubt. I think that it gave fair consideration to the country information and furthermore to the applicant's particular circumstances. At paragraph numbered 54 of its reasons it specifically referred to the inappropriateness of the concept of "onus" to Tribunal decisions. In my view, there is nothing later in its reasons to suggest that it only gave lip service to the principles which it discussed in that paragraph.
Failure to consider the circumstances of the cancellation of the applicant's security business licence and fear of loss of employment due to not obtaining a police report 42 The Tribunal referred to both of these claims in the earlier, descriptive, part of its reasons. It is true, as the respondent acknowledged, that the Tribunal did not in its reasons determine whether these matters amounted to persecution, nor whether they were the basis for a well-founded fear of persecution should the applicant return to Sri Lanka. The question is whether this shows a failure to take into account relevant material such as to amount to jurisdictional error.
my reasoning 43 The claim in relation to the loss of the licence to operate a security business related to events in 1995. The claim was that, on the recommendation of the police, the Defence Ministry cancelled the applicant's licence to carry on the business of providing security to garment factories. The evidence is that the applicant was in other employment during the period January 1997 to March 2000. 44 The applicant told the Tribunal that his last job was insecure because he was too afraid to go to the police to obtain a "police report". In his earlier statement he said that he did not want to go to the police to get a police report because he feared being beaten and having further accusations brought against him. He said that if he did not obtain such a police report before June 2001 he would have lost his job. As a Tamil, it was difficult for him to gain and keep employment. 45 In my view, this particular is bound up with the applicant's basic assertion that the Tribunal failed to address the real question, namely by reference to the harm previously suffered by him, whether there was a real chance that he would suffer persecution in the foreseeable future if he were returned to Sri Lanka? 46 In my opinion, the Tribunal can be seen to have considered the independent up-to-date country information about Sri Lanka, how Tamils are treated, the problems of bribery and extortion and the extent of available State protection. The Tribunal gave particular consideration to the main five incidents upon which the applicant relied and also to the question of what might happen to him on return due to his illegal departure. 47 At paragraph 50 of its reasons the Tribunal made it clear that it was well aware of the "real chance" principle. 48 In my view, it was not obliged to make findings in relation to the cancellation of business licence and the police report issues. I do not think that it erred in law or committed jurisdictional error in those respects. 49 Furthermore, taken as a whole, I consider that the Tribunal asked itself the right questions and neither erred in law nor committed jurisdictional error.
Conclusion 50 For the foregoing reasons the application will be dismissed with costs. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.
Solicitor for the Applicant: Messrs Christie & Strbac
Solicitor for the Respondent: Messrs Blake Dawson Waldron
Nadarajah
Minister for Immigration & Multicultural Affairs
(1998) 94 FCR 28
Application dismissed; applicant ordered to pay the respondent's costs.