Nirmaleswaran Somasunthara Iyer v Minister for Immigration & Multicultural Affairs

Background 3 The applicant is a citizen of Sri Lanka who last arrived in Australia as a temporary resident in 1996 (having returned to Sri Lanka on two previous occasions). The applicant's family and his dependents arrived in 1995 and applied for protection visas on 16 May 1996. 4 The applicant states that he is a Sri Lankan Tamil from Jaffna and that he left Sri Lanka to escape persecution at the hands of the security forces and the LTTE. He says that he would be arrested and tortured/put to death if he returned because he was a Tamil and had previously lived in an area under the control of the LTTE. 5 The applicant also claims that in 1977 he had taken up a position as a teacher of Tamil in Ratnapura in the south of Sri Lanka. During the ethnic riots in 1977 he had been severely harassed, assaulted and threatened by Sinhalese thugs. He said he had left the job in 1980 because he had been singled out as a Tamil from Jaffna living among Indian Tamil plantation workers in that area. He later secured a teaching post at his old school on the Jaffna Peninsula. 6 The applicant claims that in 1983 he had been abducted by the LTTE and ordered to encourage children to join them and he was, on that occasion, held by the LTTE for three hours. From 1984 to 1989 the applicant says he had been taken to army camps numerous times. He had been assaulted and bashed to extract information regarding LTTE hideouts. He said on one occasion in 1985 he had been accused of saving LTTE militants when soldiers raided the temple and he only escaped by being sent to another camp as a result of his father's help. 7 After the Indian Peace-Keeping Force (IPKF) arrived in Sri Lanka in 1987 the applicant says he was arrested by the IPKF on suspicion of protecting the LTTE and granting refuge to militants. Further he said he was arrested in 1988 and assaulted and tortured and was only released with the help of his father who died in 1989. 8 After the IPKF had withdrawn, and the LTTE had taken control of the Jaffna peninsula, the applicant says he was granted permission to go to Colombo on the condition that he left his wife and children behind in Jaffna as security for his return. However, he found Colombo very expensive and after contacting his wife's sister and her husband in Australia, he obtained a visa to visit Australia. 9 Once in Australia the applicant said he attempted to obtain a work visa in order to remain in the country for an extended period but was advised that to secure such a visa he must return to Sri Lanka and apply to the Australian High Commission there. He therefore returned to Jaffna for that purpose and applied to the LTTE for passes for his family as well. The applicant stated that the LTTE insisted that he leave his young son behind in Sri Lanka but, after the payment of a bribe, the LTTE eventually gave him passes to leave for all his family. They travelled to the LTEE checkpoint at Omathai after the Sri Lankan forces had bombed his home village. 10 Thereafter the applicant and his family stayed in Colombo with people who had known his father. On one occasion he was asked to show his identity card and had been interrogated regarding his stay in Colombo. He said that on this occasion he was taken to the police station and was released after the payment of a bribe. 11 While living in Australia the applicant arranged for his brother and mother to travel from where they were living to Colombo. He said his brother was later arrested and was suspected as a 'Black Tiger' (suicide bomber). The applicant subsequently returned to Sri Lanka again because of his mother's health. When he arrived he found his mother had already died and, after arranging his mother's funeral, he contacted a priest who obtained his brother's release, again after the payment of a bribe. The applicant then sent his brother back to Jaffna and the applicant himself was urged by CID officers to leave Sri Lanka.

Tribunal Hearing 12 At the hearing before the Tribunal the applicant made the following submissions: a) that when the applicant visited Sri Lanka on the two occasions referred to above the prevailing conditions in Colombo had been relatively peaceful. However, while in Sri Lanka on these occasions of relative peace he had experienced "many problems". He claimed that there was a link between the problems experienced by him and those experienced by his brother in that the applicant's brother had been singled out by reason of his Tamil ethnicity, membership of a particular social group and political opinion and the applicant had had to pay a bribe for his release. b) that he was worried and concerned that his young son would be forcibly recruited by the LTTE if he returned to Jaffna and because the government forces commonly persecuted young Tamils in Jaffna and Colombo on the assumption that they were members or supporters of the LTTE. c) that he would be readily identifiable in Colombo as a Tamil Hindu priest and that people like him would be the first to be targeted if some kind of civil disturbance erupted, because he would be visible and distinguishable from the rest of the Tamil community. d) that he was able to enter and exit Sri Lanka on the two occasions he had returned since first arriving in Australia without problems only because of the corruption and inefficiency in the Sri Lankan bureaucracy. e) that he had, in the past, been detained and tortured; had had several of his relatives killed and that his involvement with the LTTE had put him at a high risk of persecution by the Sri Lankan authorities should he return to Sri Lanka. The applicant tendered documentation at the hearing to support these submissions. The Tribunal also heard evidence from a witness as to the issues referred to above. 13 The Tribunal member questioned the applicant about the following matters: a) As to how he had been arrested, over what period and the reason for his arrests;

b) As to what assistance he had been forced to give to the LTTE;

c) As to whether he had had problems travelling throughout Sri Lanka (including government checkpoints);

d) As to the names of relatives he stayed with in Colombo;

e) As to why he returned to Colombo in 1995 and 1996;

f) As to the details of the security given for the passes he obtained for each of his children to leave Jaffna;

g) As to why, considering the circumstances, he sent his brother back to Jaffna and the current whereabouts of his brother; and

14 As to why, considering his current claims, he did not apply for a protection visa when he first arrived in Australia. 15 In making its decision the Tribunal then considered the current political situation in Sri Lanka, particularly the situation in Colombo and Jaffna.

LEGISLATION 16 The relevant provisions of the Act provide: Application for review 476. (1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds: (a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed; … (e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision; … (g) that there was no evidence or other material to justify the making of the decision. (2) The following are not grounds upon which an application may be made under subsection (1): (a) that a breach of the rules of natural justice occurred in connection with the making of the decision; (b) that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power. … (4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless (a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist." Refugee Review Tribunal to record its decisions 430. (1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based

TRIBUNAL DECISION 17 The Tribunal did not find the applicant an impressive witness, commenting particularly on his demeanour at the hearing. The Tribunal found that he repeatedly refused to give straightforward answers to questions and that he was evasive when pressed for details of his claims. There were, the Tribunal said, significant inconsistencies in his evidence. For example, in his original statement he said he had been arrested on one occasion when he was in Colombo in August and September 1995, after he brought his family down from Jaffna. However at the Tribunal hearing the applicant said at first that he had been arrested twice in Colombo when he had been there in August and September 1995. When asked why he had not mentioned previously this first arrest the applicant said he had mentioned it to his then representative but that it had been "omitted from this statement". This explanation was not accepted by the Tribunal. The applicant failed to mention the third arrest at the Tribunal hearing until he was prompted to do so by the production of a facsimile message by his witness. Having regard to the impression formed at the hearing and the inconsistencies in the applicant's evidence concerning crucial matters the Tribunal did not accept him as a witness of truth. 18 The Tribunal found that the fact that the applicant returned to Sri Lanka not only once but twice after coming to Australia suggested that he did not have a well-founded fear of being persecuted if he returned to Sri Lanka. The Tribunal accepted that it was natural that the applicant would wish to bring his family with him to Australia and that it was natural that he would wish to see his mother before she died and prepare her funeral. However the Tribunal said that as a refugee is, by definition, a person who is unable or unwilling to return to his or her country of nationality because of a well-founded fear of persecution for one of the Convention reasons, it concluded, having considered the evidence, that this applicant is not a refugee. 19 The Tribunal relied not only on the fact that the applicant returned to Sri Lanka twice after coming to Australia, but also on his delay in lodging the application for a protection visa to conclude that it did not accept that the applicant genuinely feared that he would be persecuted for Convention reasons if he were returned to Sri Lanka. 20 In particular, the Tribunal: a) did not accept that from 1984 to 1989 he was arrested and taken to army camps numerous times and assaulted and tortured; and b) did not accept his account of his three arrests in Colombo in August and September 1995. 21 The Tribunal also doubted the efficacy of the letters and statutory declaration produced by the applicant in support of his case and noted there was nothing in the documents to indicate whether the people who purportedly created these documents were speaking from their personal knowledge or whether they were merely retelling what they had been told by the applicant or others. The Tribunal did not accept that the statements provided credible corroboration of the arrests alleged by the applicant. 22 The Tribunal also found the evidence regarding the applicant's brother's arrest and detention unconvincing, given the fact that he claimed in his original statement and confirmed at the hearing that his brother was detained at a specific place. According to independent evidence, that place was not in use as a detention centre at the time. Consequently the Tribunal did not consider that there is a real chance that the applicant would be arrested if he returned to Jaffna by reason of his brother's circumstances. 23 The Tribunal did not accept that because one can point to instances where a member of a particular social group has been arrested on suspicion of assisting the LTTE, this means that the members of that group are being arrested by reason of their membership of that group rather than by reason of the suspicion (which may or may not turn out to be well-founded) that they have been assisting the LTTE. 24 The Tribunal also did not accept that, as asserted by the applicant's representatives, arbitrary arrests, detentions and disappearances continue on the Jaffna Peninsula today. 25 Neither was the Tribunal aware of any evidence that the LTTE is forcibly recruiting young boys on Jaffna Peninsula now and did not accept the applicant's submission that this was still occurring nor that his son would face a real chance of being arrested in Jaffna as a member or supporter of the LTTE merely by reason of the fact that he is a young Tamil. 26 The Tribunal's conclusion was that if the applicant returns to his family on the Jaffna Peninsula now or in the foreseeable future, there is not a real chance that he will be arrested or tortured or otherwise persecuted by reason of his race (Tamil), the political opinion that may be imputed to him (support for LTTE) or his membership of the particular social group of Hindu Priests. Nor is there a real chance that the applicant's son would be arrested in Colombo merely by reason of the fact that he is now a young Tamil who was born on the Jaffna Peninsula or by reason of any political opinion in support of the LTTE that may be imputed to him for that reason. 27 The applicant was not therefore a person to whom Australia has protection obligations under the Refugee Convention. 28 As the applicant's wife and their children did not make specific claims in their own right the Tribunal was consequently unable to find on the material before it that they are persons to whom Australia has protection obligations under the Refugees Convention.

29 Counsel, on behalf of the applicants, made detailed submissions which, in summary, were that:

a) The Tribunal in coming to its decision either misunderstood or misapplied the test or guidelines enunciated in Chan v Minister for Immigration and Ethnic Affairs(1989) 169 CLR 379 when reaching its conclusions as to whether there was a real chance that the applicant would be persecuted if he, and his family, returned to his country of nationality. In particular, counsel submitted that the Tribunal adopted a wrong and narrow view of the term 'persecuted by', in concluding that anything short of actual physical violence or torture could amount to persecution because, it was argued, it had concluded that the applicant, according to its findings, had not undergone long periods of detention and suffered torture in Sri Lanka, and was therefore not satisfied that his fear of persecution was well founded in an objective sense; and

b) The Tribunal, when it concluded that there was not the relevant degree of subjective fear because the applicant had twice returned to Sri Lanka after having come to Australia, had not given proper weight to the applicant's particular circumstances and reasons for returning to Sri Lanka on each occasion; and

c) The Tribunal failed to give adequate reasons in respect of all its main findings and therefore failed to comply with s 430(1) of the Act.

30 In relation to the first submission it is not challenged that the Tribunal has set out in the usual way in the decision the relevant "tests" which it is bound to apply. In particular the accepted meaning of "persecution" is stated (RD 253) and when fear of persecution can be regarded as well founded (RD 254). 31 The Tribunal reviewed the evidence in some detail and made a number of findings as to credit of the applicant. The Tribunal ultimately concluded that the applicant would not face a real chance that he would be arrested and tortured or otherwise persecuted if he returned to Sri Lanka. There is, in my view, on reading the decision as a whole, no basis for concluding that the Tribunal narrowed or wrongly applied the stated relevant tests. Nor is there any evidence that a high or inappropriate degree of proof was required by the Tribunal. The submissions on this ground merely challenge the factual findings made and the basis for them. Far from not evaluating the evidence properly, or not applying the tests set out in Chan v Minister for Immigration and Ethnic Affairs (supra), the Tribunal's conclusions were reached after rejecting as untrue the applicant's story about actual torture and persecution and, as the respondent points out, on a number of occasions, the Tribunal specifically considers the consequences of its preferred view on crucial issues being wrong and comes to a conclusion on that basis, again adverse to the applicant.

The applicant's subjective fear of persecution 32 The respondent submits, correctly in my view, that the Tribunal needed to go no further in reaching its conclusion that this applicant is not a refugee, once it had found that the applicant did not have, in a subjective sense, the requisite degree of fear of returning to Sri Lanka. 33 Central to the Tribunal's conclusion or finding as to whether this applicant had any actual or subjective fear of persecution was the fact that he had returned twice to Sri Lanka from Australia before making this application. The Tribunal concluded, as a matter of fact, that these return visits, the first to acquire a necessary visa in order to remain in Australia for a longer period, and the second, because of his mother's illness and subsequent death, were voluntary and supported a conclusion that the applicant did not have the necessary fear of persecution required by someone seeking refugee status. The Tribunal was able to come to that conclusion on the evidence, and it has not fallen into legal error in the process of doing so. The applicant is really submitting that if the whole of the evidence had been addressed a different conclusion would be reached. The problem with the applicant's case is that, on important issues, he was disbelieved and his documentary material treated sceptically and given little weight. This was not a case of a wrongly applied test but of adverse factual findings which precluded the conclusion the applicant sought. No error of law is made out. 34 Having come to this conclusion and applying the correct principles about the applicant's fear of persecution, the Tribunal needed to go no further in its analysis of the basis of the claim, although it did in fact do so, and considered the objective circumstances in Sri Lanka and the other issues raised by the applicant.

Failure to comply with s 430(1) of the Migration Act 35 Considering the conclusion I have reached as to the Tribunal's finding of no subjective fear, it is not necessary to express a view on this issue as it affects other findings made by the Tribunal. However, for completeness, I make the following comments. 36 The applicant relied on a number of authorities supporting an interpretation of s 430(1)(d) which would require a Tribunal to deal expressly in its reasons, with probative evidence adverse to the findings it made and, in its reasons, explain why such evidence is rejected or not preferred. 37 In my view, the proper interpretation of s 430(1)(d) does not impose that obligation. What is required is that the Tribunal make findings supported by probative evidence, on matters material to its conclusions as to the refugee status of the applicant. The fact that there is contrary evidence is irrelevant to this statutory obligation. 38 Counsel for the respondent argued that s 430(1) should be understood as being supportive of the "no evidence" ground (s 476(1)(g)) of the Act where an applicant must show that there was no evidence to support a critical fact. The existence of contrary evidence is irrelevant to an obligation to indicate the evidence which supports a finding. I agree with that submission. In this case, the Tribunal considered all the claims of the applicant, referred to them both in the reasons and the findings made and came to the conclusion, based on probative evidence, that the applicant was not a refugee. In so doing the Tribunal applied the correct relevant tests enunciated in binding authorities and, in setting out its reasons for the conclusions reached, complied with its obligations under s 430 of the Act. None of the grounds for review are made out. 39 The application is dismissed with costs.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Connor.

Solicitor for the Applicant: Jamnadas & Associates

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 22 and 27 October 1999