Pirapakaran v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|2000-05-15|Before: Hely J

REASONS FOR JUDGMENT 1 On 30 May 1996 application was made for a protection visa. Four persons were included in the application (those claiming to be refugees and members of the family unit):

Inthumathy - Pirapakaran
Barathy - Pirapakaran (daughter)
Arjuna - Pirapakaran (son)
Nadarajapillai - Pirapakaran (husband) 2 Inthumathy Pirapakaran completed the form so as to indicate that she had her own claims to be a refugee. The form was not completed in that way in relation to the daughter, the son or the husband, although advice was later given that the husband had claims of his own to refugee status. In due course the husband lodged a Form C application for a protection visa; this form is appropriately completed by an applicant who wishes to submit his or her own claim to be a refugee. 3 The applicant husband is a Tamil. He and his wife are from the Northern Province of Sri Lanka. They were married in 1984. The day after their marriage they were detained, questioned and mistreated by members of the Sri Lankan Army because of their suspected association with LTTE. In October 1984 the applicant husband left Sri Lanka and went to Singapore. In October 1985 the applicant wife left Sri Lanka and joined her husband in Singapore. Shortly afterwards the applicants moved to India. The applicant husband returned to Sri Lanka on a number of occasions - in 1988, 1990, 1991 (twice), 1992 (twice), 1994 and 1995. The applicant wife returned to Sri Lanka in 1988, at least once between 1988 and 1995, and in October 1995. 4 Against that background the Refugee Review Tribunal ("RRT") said (RD 206): "The Tribunal is satisfied that their returns demonstrate that the Applicants at the time of those returns did not have a subjective fear which prevented them from returning to their country of nationality and that they did not fear arrest, including in relation to the stated visits to their home in India between 1986 and 1991." 5 RRT made adverse findings as to the credibility of each applicant. At RD 205 RRT said: "The Tribunal concluded that the degree of embellishment and lack of candour was such that it cannot necessarily accept everything put forward by the Applicants at face value where it is inconsistent, uncorroborated or otherwise implausible." 6 The applicant wife stated that on her return to Sri Lanka in October 1995 she experienced a number of difficulties. There is little point in recounting the claims which she made in that respect, as distinct from RRT's findings with respect to those claims, because at RD 209 RRT said: "The Tribunal also concluded that the Applicant wife has embellished her account of her last visit in 1995 in order to enhance her claims for refugee status to remain in Australia, both she and her husband having decided prior to that visit to Sri Lanka that they would settle in Australia." 7 The applicant wife stated that a few days after their return to Colombo on the last occasion, the police had come and checked houses, and she was questioned because she had not registered with the police as required. RRT did not accept that the applicant wife's contact with the police on this occasion went beyond a routine check and questioning, and did not accept that she was threatened or mistreated on that occasion. 8 The applicant wife also claimed that soon after her return to Sri Lanka in October 1995 the LTTE demanded 500,000 rupees and said that if the money was not paid, they would take her daughter (then aged 9 years) for their youth forces. With the assistance of her parents and parents-in-law, the applicant wife paid half the money and told them she would pay the balance after she arranged the money in Colombo. 9 Notwithstanding the generally adverse conclusions which RRT formed as to the applicant's wife's credibility, it said of this incident (RD 211): "However, the Tribunal accepts as plausible that she did experience LTTE demands for money soon after she returned from overseas in 1995 - there is ample anecdotal evidence (including in accounts set out in Tribunal decisions) concerning extortion and demands for persons returning from overseas to LTTE-controlled areas. This was also documented in 1992 by the Research Directorate of the Immigration and Refugee Board of Canada, Sri Lanka: Internal Flight Alternatives 1992, which noted: '... the British Refugee Council states that Tamils returning from abroad are at particular risk of extortion, since there is a perception among the LTTE and government security forces that people who have been abroad will have saved a great deal of money.' The available information leads to a conclusion that some people who are wealthy or perceived to be wealthy are the targets of extortion, regardless of race, religion, nationality or political opinion. The Tribunal concludes that the Applicants were targeted for financial demands because, living and working overseas, they were perceived to be wealthy and not because they are Tamils or as punishment for matters going back more than ten years. (Indeed, if the LTTE believed the applicants to have betrayed them by giving information to the security forces, everything that is known about the LTTE suggests they would have taken more serious retribution against the Applicant wife than demands for money.) The Tribunal is satisfied that in such circumstances those people subject to such demands are not a particular social group for the purposes of the Convention. The Tribunal is not satisfied that these demands, or any other adverse attention by the LTTE in relation to the Applicant and his wife, were motivated for any Convention reason or that any feared future harm on return for not having paid the money demanded is motivated by a Convention reason." 10 There is no further description of the "anecdotal evidence" which RRT had in mind, nor is there any further description of the RRT decisions in relation to extortion of persons returning from overseas to LTTE-controlled areas. 11 The document, "Sir Lanka: Internal Flight Alternatives" is included in the relevant documents. The focus of the paper, as its name suggests, is upon whether there are relatively safe places in the south and centre of Sri Lanka for Tamils fleeing the violence in the north and east, taking into the account the program restarted by the government of India in August 1992 of returning displaced Tamils to Sri Lanka. Section 2.1 of the paper includes the following: "Several sources indicate that the LTTE often use extortion to gain funds and services from Tamils and others in the north and elsewhere. An LTTE minimum tax of two gold sovereigns (about CDN$300) per family has been reported, with those unable to pay allegedly facing imprisonment or being told to send a son or daughter to the LTTE army instead ... Malcolm Rogers of the Sri Lanka Project based at the British Refugee Council states that Tamils returning from abroad are at particular risk of extortion, since there is a perception among the LTTE and the government security forces that people who have been abroad will have saved a great deal of money ..." (Emphasis added)

The extortion issue 12 The applicant submits that the following reviewable errors were made by RRT in its treatment of the applicant's claims in relation to the demands made by LTTE on her return in October 1995:

RRT failed to comply with Migration Act 1958 (Cth) s 430(1)(d) in that it did not sufficiently identify the "anecdotal evidence" and the "Tribunal decisions" so as to enable the applicant to identify the material to which reference was made.
there is an ambiguity or obscurity in "Internal Flight Alternatives" in that it is not clear whether it is people returning from abroad in general, or Tamils returning from abroad in particular, who are at risk of extortion. RRT failed to comply with s 430 in that it does not explain why it resolved the ambiguity in favour of people generally, rather than Tamils in particular: see Alphonsus v Minister for Immigration & Multicultural Affairs [1999] FCA 289 at [37] - [38]. The importance of the distinction is illustrated by the differing outcomes in Perampalam v Minister for Immigration & Multicultural Affairs (1999) 84 FCR 274 (extortion directed at Tamils) and Santhikumar v Minister for Immigration & Multicultural Affairs [1999] FCA 1777 (extortion because the victim was perceived to be rich, rather than because she is a Tamil). 13 The first objection is without substance. The obligation under s 430 relevantly is to set out the finding on any material questions of fact, and refer to the evidence or any other material on which the findings of fact were based. The finding in question is that the applicant experienced LTTE demands for money soon after she returned from overseas in 1995. That finding is based upon the applicant's evidence to that effect and RRT refers to that evidence. The finding is not based upon the "anecdotal evidence" or "the Tribunal decisions". They only serve to explain why RRT accepted the applicant's evidence in this respect, when generally it was not prepared to do so. 14 Nor did RRT fall into the type of error exposed by the decision in Alphonsus. "Internal Flight Alternatives" indicates that people returning from abroad are at risk of extortion because there is a perception that they would have saved a great deal of money. When it is said that Tamils returning from abroad are at particular risk of extortion, the contrast is with Tamils who have not been abroad, since they would not be the subject of the perception. Thus RRT was justified in coming to the conclusion, as it did, that the applicants were targeted for financial demands because, living and working overseas, they were perceived to be wealthy rather than because they are Tamils. On that basis, the case falls on the Santhikumar side of the line.

Relocation 15 It was not necessary for RRT to consider the question of relocation as it did not accept that the applicants had a well-founded fear of persecution. However, as the matter was argued on the application for an order of review, I should deal with it. 16 RRT made a finding that, even if the applicants were at risk from the LTTE in LTTE-controlled areas in the north and east of Sri Lanka, it was not unreasonable for them to relocate to Colombo. The applicant submits that in making this finding, RRT did not consider whether the applicants faced a real chance of persecution from the authorities if they relocated to Colombo. 17 It is not surprising that no reference was made to the authorities in this section of RRT's reasons as it is headed LTTE and as it deals with demands or other adverse attention by the LTTE. 18 So far as the authorities are concerned, RRT had already found:

there is ample evidence that the present government does not target Tamils indiscriminately (RD 209);
the applicants are not of adverse interest to the authorities and do not face a real chance of mistreatment or persecution for that reason (RD 210);
in Colombo, Tamils may be affected by general security operations including the need to identify themselves during checks. If on return the applicants face routine questioning, that is not of itself persecution for a Convention reason (even if such an interest is prompted in part by the similarity of the applicant's surname to that of the LTTE leader) (RD 209);
subsequent to their experiences in May 1984, the applicants have not been mistreated or persecuted by the authorities in Sri Lanka for a Convention or any other reason (RD 209);
the Tribunal is satisfied that they may return to Sri Lanka and live in Colombo, which they have visited on a number of occasions over the years and where (notwithstanding the applicant husband's claims at the hearing) the Tribunal is satisfied that they have family, friends and business contacts (RD 212). Given those findings, there is neither need nor purpose in repeating in the context of "relocation" the discussion of the chance of persecution at the hands of the authorities if the applicants returned to Colombo. 19 There was a country information before RRT (RD 302-306) that in Colombo:
the majority of people arrested under the emergency regulations in Sri Lanka were Tamils in connection with LTTE activities;
those most likely to be tortured were Tamils;
approximately half of the people in detention are mistreated, and in a small number of cases the mistreatment is serious;
people were stopped randomly at checkpoints and asked to show their national identity cards. Tamils from the north and east of Sri Lanka would be required to explain their presence in Colombo. If they could not explain their presence in Colombo to the satisfaction of the security personnel, they might be taken into custody;
there had been occasions of mass arrests following major security incidents. RRT did not refer to this country information in coming to its conclusion that the applicants could safely return to Colombo. That observation is subject to the qualification that RRT did make findings, as indicated above, in relation to Tamils being affected by general security checks. 20 RRT based its findings in relation to Colombo upon the applicant's own evidence as to the many visits to Colombo subsequent to 1984 when they stayed openly with friends and without incident so far as the authorities are concerned. If it be assumed that the country information, to which I have referred, is inconsistent with the findings which RRT reached in that respect, the weight of current authority favours the proposition that s 430 does not require RRT to give reasons for rejecting evidence inconsistent with findings which it makes on material facts: see eg, Doss v Minister for Immigration & Multicultural Affairs [1999] FCA 1780; re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407. 21 It was also put that RRT had access to independent country information upon which it had relied in other matters which was relevant to the relocation issue, but to which RRT did not refer. 22 The applicant's counsel helpfully summarised that information as follows: "1. Tamil people in Colombo are subjected to a greater degree of surveillance and suspicion than non-Tamil people. They experience a higher level of insecurity than non-Tamils (Thangavel at 9.6). 2. During March 1998 the security forces markedly increased large-scale cordon and search operations, spot checks and questioning of Tamils in Colombo. The number of people arrested and detained increased sharply (Thangavel at 10.1). 3. Since October 1997, the LTTE has launched an attack in the south every month, including two in Colombo, one in Kandy and one in Galle. The frequency of LTTE attacks has led to a considerable tightening of security in Colombo ... The tighter security is felt especially by members of the Tamil community. As security tightens, more people are being arrested, and the impact of the security measures are being felt by more Tamil people (DFAT cable CL821, dated 13 February 1998, CX28768). (Iyer at 21.6). 4. Those at particular risk of being detained in round-ups or cordon and search operations are young Tamil men and women recently arrived from the North or the East (see DFAT cables CL38234), dated 15 December 1995, CX12970; CL463, dated 24 January 1997, CX21595; and CL821 dated 13 February 1998, CX28768; Amnesty International, Sri Lanka: Wavering commitment to human rights, August 1996, page 21). (Iyer at 21.10)." Thangavel is a reference to the decision of the Federal Court in Thangavel v Minister for Immigration & Multicultural Affairs [2000] FCA 53; Iyer refers to RRT reference N97/18645. 23 The country information which RRT had before it was a DFAT report dated 5 March 1999. That is later in point of time than the information to which the applicant's counsel referred. There is nothing inappropriate in RRT confining its attention to the most recently available information with respect to the conditions in Colombo. It was a matter for RRT to determine the relevance of that information given the particular personal circumstances of the applicants. This is not an appropriate case in which to consider whether, or to what extent or in what circumstances, RRT is subject to a duty to enquire. The information which it is said that enquiry would have revealed is more dated than the information which RRT in fact had upon the topic to which the information relates.

Persecution arising from identical last name 24 The applicant husband's last name is the same as that of the LTTE leader. The applicant made various claims of harassment flowing from the coincidence of names. The applicant submits that RRT erred in not considering whether this gave rise to a well-founded fear of persecution for a Convention reason. 25 I have already referred to RRT's findings on the applicant's credibility. So far as I can see, the only specific reference in RRT's decision to the coincidence of surnames is its finding on RD 209 that routine questioning is not persecution for a Convention reason, even if such an interest is prompted in part by the similarity of the applicant's surname to that of the LTTE leader. However, RRT specifically concluded that the applicant did not have a subjective fear of persecution having regard to their returns to Sri Lanka in 1988 and afterwards, without adverse attention by the authorities, except for the routine check and questioning by the police to which the applicant wife was exposed in October 1995. 26 A fair reading of RRT's decision is that neither applicant has suffered difficulties which causes them now to fear persecution at the hands of the authorities due to the fact that the applicant husband had the same name as an LTTE leader. To the extent to which the applicant's evidence might suggest otherwise, it was simply not believed. RRT has, I think, adequately dealt with this issue.

Persecution of daughter 27 At RD 214 RRT said: "No specific Convention claims were made by or on behalf of the Applicant's children, and there is no basis on which the Tribunal can be satisfied that they are refugees. The fate of their applications therefore depends on the outcome of that of their parents. As the Tribunal has found that the Applicant (sic) do not satisfy the criteria for protection visas, it follows that their children cannot be granted a protection visa." 28 The applicant wife claimed that on her return to Sri Lanka in October 1995 the LTTE demanded money from her and said that if the money was not paid, they would take her daughter for their youth force. RRT does not state explicitly whether or not it accepted that a threat had been made in relation to the daughter if the money were not paid, but given that "Internal Flight Alternatives" refers to those who are unable to pay LTTE demands being told to send a son or daughter to the LTTE army instead, it seems a reasonable inference that RRT accepted what the applicant had to say in this respect. 29 In the light of that claim, the applicant submitted that RRT should have considered whether there was a real chance that the applicant's daughter would be taken by the LTTE for its youth force, and if so, whether this constituted persecution of the daughter for a Convention reason. It is implicit in this submission that the daughter should be treated as if she had a claim for a protection visa in her own right, rather than simply as a member of the family unit. 30 The applicant accepts that the matter was not put in this way before RRT. It is accepted that no independent claim on the part of the daughter was put to RRT but it was submitted that RRT was nonetheless bound to determine whether the daughter had an entitlement to a protection visa independently of the entitlements of her parents. Paramananthan v Minister for Immigration & Multicultural Affairs (1998) 160 ALR 24 and Thevendram v Minister for Immigration & Multicultural Affairs [1999] FCA 182 at [37] were called in aid of this submission. 31 That submission was modified by additional written submissions lodged after the hearing, in which it was accepted that the applicants' daughter did not make specific claims under the Refugees Convention at the time of the application. Instead she claimed to be a member of the same family unit as her parents. Accordingly, the effect of cl 866 in Schedule I of the Migration Regulations, particularly cl 866.222, is that if the daughter's parents do not satisfy the criteria for a protection visa, the daughter cannot satisfy the criteria. The applicants thus accepted that the RRT did not make a reviewable error in not considering a claim on behalf of the applicants' daughter for a protection visa. 32 However, it was submitted that a threat to a person of harm to a family member can constitute persecution of the person threatened in the Convention sense. In principle, I accept that this may be so. But there are two problems in seeking to apply such a principle in the circumstances of the present case. 33 First, RRT has found that the financial demands made of the mother were not made for a Convention reason. They were made because of a perception that the applicants were wealthy. The accompanying threat in relation to the daughter if the demand was not acceded to might call into question the correctness of that finding (on the assumption that such a threat would not be made unless the family were Tamils) but, even assuming that to be so, it does not rise above the making of an erroneous factual finding on the part of RRT, which is not itself a ground of review. 34 Second, and more importantly, RRT found that the applicants would only be at risk from the LTTE in LTTE-controlled areas in the north and east, that they could avoid this particular difficulty by living elsewhere in Sri Lanka, such as Colombo, and that it is not unreasonable for the applicants to live in Colombo. That finding encompasses the threat in relation to the daughter. 35 Even if RRT failed to comply with s 430(1) of the Act by not making an express finding as to whether the applicant wife suffered Convention based persecution as a result of LTTE's threat to recruit her daughter, I would not in the exercise of my discretion under s 481 make an order quashing RRT's decision, because it can be independently sustained by the findings referred to in par 34 above.

Conclusion 36 The application is dismissed with costs. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Solicitor for the Applicant: Jamnadas & Associates

Solicitor for the Respondent: Australian Government Solicitor

Migration Act 1958(Cth)ss 430, 430(1), 430(1)(d), 481, s 430(1)(d)

At a glance

Court

Decision date

Before

Source

Judgment (8 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (8)