Ponnudurai v Minister for Immigration and Multicultural Affairs

REASONS FOR JUDGMENT 1 The applicant has filed in the Court, for the third time, an application for review of a decision of the Refugee Review Tribunal refusing him a protection visa. Twice before he was refused, and on each occasion the Minister conceded that he had not received a decision according to law, with the result that by consent the matter was referred back for re-determination by the Tribunal differently constituted. It is with the decision of Mr G Short, after the third hearing in the Tribunal, that the present application is concerned. 2 The applicant is a young man, a Tamil born at Jaffna, in Sri Lanka, on 2 November 1966. In late 1989, he was forced to attend a number of classes conducted by the Liberation Tigers of Tamil Eelam (LTTE) in Jaffna, despite the representations of his parents, who sought to have him exempted on the ground of a severe limp, the aftermath of childhood polio. Their representations being of no avail, his parents sent him to Colombo, where he became a student, and subsequently obtained a senior position in a school of some prestige, St Joseph's College. Not long afterwards, in May 1990, his father was taken away by the LTTE and has not been seen since. In June 1990, his two younger brothers also came to Colombo, where they were arrested and, it was said, tortured, but were released after a court proceeding, and fled to the United Kingdom. They were apparently accepted as refugees, and live there. 3 The applicant claimed to have been able to live in Colombo without serious problems, although he said he was arrested on several occasions in general search and round-up operations conducted by the authorities. By 1994, he was a Course Director at St Joseph's College. He said, as the Tribunal noted, he was "approached by members of the Eelam National Democratic Liberation Front (ENDLF) who had formerly been members of the EPRLF [Eelam People's Revolutionary Liberation Front] … to join their intelligence network". At one of the hearings he has attended, when he gave evidence, he referred to the organisation involved as the EPRLF. In his oral account to Mr Short, the applicant said that, after being approached by the ENDLF on a number of occasions, he was arrested in May 1995 and taken to an army camp, where he was beaten, but released after about five hours. It was the applicant's case that, following this arrest, which was not an ordinary search and round-up operation of the kind that occurred from time to time, he resigned his position at St Joseph's College and arranged to leave the country. He actually left in December 1995 for Singapore, but was unable to get any further (it was suggested, because of an agent cheating him), and had to return to Sri Lanka. He left again on 20 February 1996 to come to Australia. 4 The applicant pointed out, as the Tribunal noted, "that following the breakdown of peace talks between the Government and the LTTE in April 1995 there had been a number of incidents which made it unsafe for a young Tamil like himself to return to Sri Lanka. He referred to reports of various bombs exploded by the LTTE in Colombo and the rounding up of Tamils in Colombo and elsewhere by the security forces. He also said that he feared a backlash by the Sinhalese people against the Tamils." The applicant alleged too that, in the interval between his return from Singapore and his departure for Australia, he had been required, on 14 and 15 February 1996, to go to the CID headquarters (ie the headquarters of the Criminal Investigation Department), where he was interrogated and beaten, and that he was required to report again on 20 February 1996, but did not do so as that was the day he left Sri Lanka. 5 There is no doubt that the time when the applicant fled from Sri Lanka was a time when the conflict between the government forces and the LTTE was at a peak. Mr Short notes that "[i]n October 1995 the Sri Lankan Army launched a major offensive in the Jaffna Peninsula under the code name 'Operation Riviresa'. The LTTE blew up the country's two largest oil storage facilities at Kolonnawa in Colombo in October and in mid-November two LTTE suicide bombers caused 18 deaths and more than 50 injuries in Colombo. The army captured Jaffna in mid-December 1995. In January 1996 the LTTE exploded a bomb at the Central Bank building in Colombo, resulting in 100 deaths and about 1400 injuries. In April 1996, … the army took control of much of the rest of the Jaffna Peninsula and it completed this process … in mid-May 1996." These events had been preceded by a period of peace talks which the LTTE had terminated unilaterally in April 1995. 6 As at the date of the decision made by Mr Short, on 14 December 1998, the current situation in Colombo, he noted, was to be gauged from a report by the Australian Department of Foreign Affairs and Trade (DFAT), dated 13 February 1998, as follows: "Since October 1997, the LTTE has launched an attack in the south every month, including two in Colombo …. . The frequency of LTTE attacks has led to a considerable tightening of security in Colombo. In the last month an additional reason for tighter security was the 4 February celebrations for the 50th anniversary of independence. The tighter security situation 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 [sic] being felt by more Tamil people." Mr Short also accepted: "In its most recent assessment of the human rights situation in Sri Lanka the Australian Department of Foreign Affairs and Trade stated that there had been no reports of disappearances in police custody in Colombo over the past twelve months. However it was estimated that approximately half of the people in detention in Colombo were mistreated and that in a small number of cases the mistreatment was serious". He noted too a United States State Department report for 1997, according to which "[s]ince April 1995 at least 700 persons have been extrajudicially killed by the security forces or disappeared after being taken into security forces custody and are presumed dead. As of year's end, no member of the security forces had been convicted for any of these crimes." Of significance in support of the applicant's story was a finding that pro-Government Tamil groups such as the EPRLF "are used by the Sri Lankan security forces as informants. They are particularly active in the refugee camps around Vavuniya and in the war zones in the North and the East where they have reportedly been involved in extrajudicial killings, illegal arrests, torture and extortion of [sic] civilians". 7 Mr Short, in his consideration of this matter, was particularly concerned by certain discrepancies in the applicant's account of events directly involving him, and by his failure to mention, in his original written application, all of the details he later put forward in evidence at the various hearings. Some of the discrepancies the Tribunal perceived might seem to other minds, and particularly to those with experience of the giving of evidence through interpreters, to carry little weight; and indeed, at earlier stages of this matter, some evidence which Mr Short did not believe, was accepted. Nevertheless, it was for him to find the facts, and the manner in which he did so was not the focus of any submission of law. Ms Wilkins, who appeared for the applicant, concentrated her thoughtful submissions on the reasoning which followed Mr Short's rejection of the applicant's evidence about his own experiences. It is necessary to an understanding of the arguments presented to set out in some detail this portion of the reasons of the Tribunal, as follows: "Having rejected the Applicant's evidence with regard to his past persecution by the Sri Lankan authorities and pro-Government Tamil militant groups in Sri Lanka, I do not consider that he will face a real chance of being persecuted by the Sri Lankan authorities or by such groups if he returns to Colombo now or in the foreseeable future. Since I do not accept that he was required to report to the CID on 20 February 1996, it follows that I do not accept that, because he supposedly failed to report, and because he subsequently left the country, he will be regarded as an 'LTTE person' on his return. I do not accept that the Applicant as an individual has ever been of any interest to the Sri Lankan authorities or to any of the pro-Government Tamil militant groups operating in Colombo, nor that he will be of any interest to the authorities or to such groups on his return. I consider that his evidence in this regard is a fabrication intended to support his application for a protection visa. I accept that if the Applicant returns to Sri Lanka he may be stopped from time to time at checkpoints in the city. Such checkpoints are part of the security measures presently in force in Colombo and I consider that they may be regarded as measures 'appropriately designed to achieve some legitimate end of government policy' (see Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331, per McHugh J at 354). In any event, the Applicant's own evidence was that he had had no problems at checkpoints: he would show his National Identity Card, explain where he worked, and be allowed to pass. This is consistent with the independent information available to me that Tamils who have jobs in Colombo are not normally harassed by the police …. . I do not accept that, as the Applicant's then representatives submitted to this Tribunal in September 1996, the Applicant will have limited prospects of obtaining employment if he returns to Colombo. The Applicant claimed that he had held a prestigious position at St Joseph's College: indeed he claimed that this was one of the reasons why the ENDLF (or the EPRLF) had wanted to recruit him. I have rejected the latter claim and I consider that the Applicant has exaggerated the prestige attaching to his position as he has exaggerated in other aspects of his evidence. [It is interesting to note that, at an earlier stage of his reasons, Mr Short had said of the applicant: "He had held a prestigious position and would no doubt be able to obtain employment on his return."] Nevertheless, it is clear that the Applicant has marketable skills in computing training and I accept that he held a position at St Joseph's College which is a prestigious institution in Colombo. I consider, therefore, that he should not have difficulty finding secure employment on his return to Sri Lanka. Apart from his brief excursion to Singapore, the Applicant resided successfully in Colombo from November 1989 until February 1996. I do not consider, therefore, that he has a well-founded fear of being discriminated against in relation to employment or in other areas of his daily life by reason of his race (Tamil) or for any other Convention reason, if he returns to Colombo now or in the foreseeable future. I do not accept that, as the Applicant suggested on his original statement, he will be arrested if he returns to Sri Lanka because he is a single Tamil man with a National Identity card indicating that he was born in Jaffna. This claim is inconsistent with the Applicant's own evidence (at the hearing before this Tribunal (differently constituted) on 10 December 1997) that he had had no problems at checkpoints: he would show his National Identity Card, explain where he worked and be allowed to pass. As I put to the Applicant in the course of the hearing before me, the information available to me suggests that those most at risk of arrest are young Tamils, particularly those who have recently travelled from the North or the East … . The Applicant's representative referred to information suggesting that all Tamils are at risk of being arrested and that all Tamils are regarded as potential LTTE members. It is certainly true that, as the Applicant's representative has pointed out in his submissions, it is possible to identify instances in which older Tamils, for example, have been arrested in Colombo. However it does not follow from such instances that all Tamils, whatever their age, and whether they have lived in Colombo all their lives or whether they are only recently arrived from the North or the East, are equally at risk. To the extent of any inconsistency I prefer the advice referred to above from both the Australian Department of Foreign Affairs and Trade and Amnesty International which suggests that those at particular risk of being arrested are young Tamils who have recently arrived in Colombo from the North or the East. Moreover, as the High Court said in Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 at 579 per Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ [actually, Gaudron J was also a party to this judgment], 'what has happened in the past is likely to be the most reliable guide as to what will happen in the future'. [This case is now reported in 191 CLR 559, and the passage which the Tribunal quotes, though not quite accurately, appears at 575.] I have rejected as a fabrication the Applicant's account of his past experiences in Colombo, and in particular his claims that he was repeatedly arrested and accused of being involved in the LTTE. It follows that I consider that there is not a real chance, as distinct from a remote possibility, that the Applicant will be arrested in the future by the Sri Lankan authorities by reason of his race (Tamil) or his imputed political opinion (support for the LTTE). …."