Ponnudurai v Minister for Immigration and Multicultural Affairs

8 Counsel for the applicant points out that this whole passage entirely omits any consideration of the difference between the situation that confronted the applicant when he was living in Colombo and the situation that would confront him if he were sent back there. For some years, he had a senior position at a prestigious institution. At least initially, on his return, he could be expected to have a period of unemployment, and perhaps he would be unable to obtain a comparable position, even if his computer skills led to some employment, as the Tribunal forecast. He does not speak any Sinhalese. He would be a young man, without family in Colombo, who had been born (as his identity card shows), and had grown up, in Jaffna. Over a period of less than twelve months before he left, the war had become much more intense, following the breakdown of peace negotiations in April 1995, and it has continued to be intense. Evidence before the Tribunal, which was not criticized as lacking credibility to provide a basis for the assessment of the circumstances in which it had to be determined whether the applicant would be exposed to a real chance of persecution, included the well known report to the British Refugee Council of February 1997. That report (some details of which will be found set out in Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 at 30-31 and 36) referred to the statement, in November 1996, of the British "Foreign Office minister, Dr Liam Fox, [who] told Parliament that, 'I have been worried in recent days by an increasing number of reports of human rights abuses'." It notes that in August 1996 Amnesty International had expressed concern "that the government is not living up to its stated commitment to human rights. Extrajudicial executions, 'disappearances', torture and widespread arbitrary arrests continue to take place." It also referred to the statement of a Sri Lankan Supreme Court judge in November 1996 that "the court had made a number of judicial pronouncements against the use of torture and inhuman treatment by law enforcement officers, but regardless, torture in police stations continues unabated". These are strong words from the national court. The report refers to discussions in Colombo which "confirmed that Tamils continue to be singled out for attention by the security forces." It cites a statement of Amnesty International in 1996 that "among those most at risk of arrest were young Tamil men and women, particularly those who had recently travelled to Colombo from the North and East", and then comments that this "is especially the case for those Tamils whose identity cards state their birthplace as Jaffna". The report sums up the situation in Colombo as at February 1997: "Despite the attempts by the government to promote human rights, the culture within the Sri Lankan security forces remains suspicious of Tamils - in particular young males, although all Tamils, whether male or female, young or old, are at risk. That Tamils should come under suspicion because of the actions of the LTTE is understandable. What is concerning is the continued use of detention without trial, and in contravention of the Emergency Regulations; of torture to extract confessions, often in a language not understood or spoken by the signatory; and of extrajudicial executions which are linked to the security forces. While there has been a systematic reduction in human rights violations, particularly against the Sinhalese population, there continues [sic] to be human rights violations in Colombo, particularly against Tamils, which the Government appears to be unwilling or unable to prevent. It is for this reason that Colombo should not be assumed to be safe for Sri Lankan Tamils." 9 The Tribunal also had before it a Country Information Report sourced from the Department of Foreign Affairs and Trade, dated 23 March 1998, which referred to a "major difference" in the situation in Colombo since October 1997, namely, "the increase in LTTE bomb attacks in Colombo since October 1997 and the resultant intensification of security". One may comment by asking rhetorically, would not a person with the applicant's profile be at risk of arrest and mistreatment if he were nearby in Colombo after such a bomb attack? That he had not been arrested before the increase in bomb attacks and intensification of security could hardly be held to dispel this risk. The report of the Department stated too that the Sri Lankan Human Rights Task Force had been disbanded, and that a Human Rights Commission which had been established had "not yet achieved the level of operational efficiency" of the previous body. A further Country Information Report, dated 15 May 1998, from the Department of Foreign Affairs and Trade included the statement: "The incidence of serious mistreatment in detention in Colombo has been declining since mid-1996. It is estimated that approximately half of the people in detention in Colombo are mistreated, and in a small number of cases the mistreatment is serious". That the author of the report should appear to regard a degree of improvement, resulting in a situation described in these terms, as cause for some cheer might be thought particularly revealing. 10 It is in the light of this evidence that counsel submits the Tribunal was bound in law to consider whether there was a real chance the applicant would suffer persecution upon returning to Colombo, even though it had rejected his account of particular acts of persecution in the past. 11 Counsel also pointed to a number of passages in the reasoning of the Tribunal as indicative of a fundamental failure to examine the central question which the law required it to consider, whether the applicant's fear of persecution was "well-founded" in the sense that there was a real chance he would be persecuted if he returned to Colombo. In the portion of the reasons I have quoted, the Tribunal said it did not accept "that, as the Applicant suggested on [sic] 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". It is not really material to the point of law, but is indicative of the Tribunal's approach, that it began by misquoting the statement to which it referred. The applicant actually said: "I am in fear that if I return to Colombo, I will be arrested by the security forces … ." To assert a fear of arrest is to assert a risk of it, a fear that obviously depended on a real chance such as the "real chance of persecution from the Sri Lankan security forces" to which the applicant referred in the very next paragraph of his statement; he was not asserting a certainty. To take the proposition as being that he "will be arrested", and then to point out that he had escaped arrest in the past in certain circumstances (although, even so, the right question is not what might happen to him in those circumstances, but what might happen to him in general, and more especially, in one of the "mass arrests of Tamils in operations known as round-ups or 'cordon and search' operations" which the Tribunal had earlier conceded do occur) is really to miss the point. The requirement imposed on the Tribunal was to assess whether there was a real chance of persecution in the future, and the law to be applied was that stated in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 571-572: "An applicant for refugee status must also establish that his or her fear of persecution for a Convention reason is a 'well-founded' fear. This element adds an objective requirement to the requirement that an applicant must in fact hold such a fear. In Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389, Mason CJ said: 'If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring.' In the same case, McHugh J said (at 429) that a real chance of persecution excluded a far-fetched possibility of persecution but that as little as a 10 per cent chance of persecution may constitute a well-founded fear of persecution. Chan is an important decision of this Court because it establishes that a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent. But to use the real chance test as a substitute for the Convention term 'well-founded fear' is to invite error." 12 Having negatived, not that the applicant's fear of persecution was well-founded in a real chance of it, but that "he will be arrested", the Tribunal continued by referring to a suggestion it had derived from the evidence "that those most at risk of arrest are young Tamils, particularly those who have recently travelled from the North or the East". But the expression "those most at risk" and the word "particularly" indicate how far the Tribunal had strayed from the path of decision according to law. The question was not whether the applicant was most at risk, or whether he was one of those particularly at risk, but whether his fear of persecution was well-founded in a risk sufficiently tangible to enable it to be said that there was a real chance of persecution. The Tribunal went on to refer to the submission of the applicant's representative, which did relate to the true question, put in reliance on "information suggesting that all Tamils are at risk of being arrested and that all Tamils are regarded as potential LTTE members", and urging that, a fortiori, a young male Tamil with the applicant's antecedents would be at risk. But the Tribunal, while acknowledging the accuracy of this to the extent that it "is certainly true that … it is possible to identify instances in which older Tamils, for example, have been arrested in Colombo", then avoided the issue by a return to the irrelevancy that what was submitted to be a demonstrable risk was not "particular", so as to put the applicant "equally at risk" with others for whom a particular risk could be shown. The Tribunal said "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." It said it accepted evidence "that those at particular risk of being arrested are young Tamils who have recently arrived in Colombo from the North or the East." This simply does not meet the point made by the applicant's representative. Of course, for example, in World War II, the crew of a bomber were not all "equally at risk". The rear gunner was notoriously "at particular risk". But it did not follow that other members of the crew were not at risk, and did not have a real chance of being killed. The Tribunal's discussion of those most at risk, or particularly at risk, just diverted its attention from the case being made on behalf of the applicant, so that it never considered the core question which remained for decision after it had rejected the applicant's account of particular arrests he claimed to have suffered. A failure of this kind involves an error of law within s 476(1)(c) and (e) of the Migration Act 1958, and, in addition, s 476(1)(a): Labed v Minister for Immigration and Multicultural Affairs [2000] FCA 35 at para 32 (Kenny J); Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247 at paras 17, 19-23, per Wilcox and Madgwick JJ, 49-50 and 60, per Hill J; Sivarasa v Minister for Immigration and Multicultural Affairs (unreported, 11 June 1998, Burchett J) at 13-14, a passage cited when the case went on appeal as Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 at 45; Paramananthan at 37, 60, 62-63; Logenthiran v Minister for Immigration and Multicultural Affairs (unreported, 21 December 1998, Wilcox, Lindgren and Merkel JJ) at 12-13 per Wilcox and Lindgren JJ, and at 1-2 per Merkel J. 13 Then the Tribunal referred to that part of the reasoning in Guo (at 191 CLR 575; 144 ALR 579) where it is stated that "what has occurred in the past is likely to be the most reliable guide as to what will happen in the future". The Tribunal said it had "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." The Tribunal concluded: "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)." But of course this does not follow at all. The past of which the High Court spoke was not limited to the experiences of one individual. At the very same page, their Honours referred to "what … had happened to …. others" as correctly going to the relevant finding. In the present case, the issue I have been discussing, arising out of the submission of the applicant's representative about the situation of Tamils in Colombo, was certainly based on past events, but they were past events which had been thoroughly documented in respect of numerous "others", that is to say, other Tamils, and their treatment by the security forces. Again, the Tribunal's error was not so much in the obvious non sequitur into which it fell in concluding that an absence of a real chance of something happening to an individual in the future followed from its disbelief that particular similar things had already happened to that individual in the past, but rather in the consequence, that it failed to consider, as it was legally bound to do, whether a wealth of material before it, relating to past occurrences, showed the applicant's fears to be well-founded in a real chance of future occurrences. 14 In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 277 (see also 281), Brennan CJ, Toohey, McHugh and Gummow JJ declared "it is clear that the test in Chan necessitates speculation in the sense of prediction, in other words, an assessment of the future. That is implicit in the formulation 'real chance'." In Guo, the joint judgment states (at 574; 578): "In determining whether there was a real chance that Mr Guo would be persecuted for a Convention reason, the Tribunal had no choice but to form an opinion as to what was likely to occur if Mr Guo was returned to the PRC. … The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity." See also the comment of Kirby J in the same case (at 585; 587). 15 In the present case, the Tribunal did not consider whether the prevalence of mistreatment, including torture, of Tamils in Colombo over the past years, and especially in the period since the applicant left Sri Lanka, raised a probability, or real possibility, that the applicant would be so treated if he returned. Particularly, the Tribunal did not consider this question in the light of the submission which had been made to it that the applicant was a young man who did not speak Sinhalese and whose identity card stated his place of birth as Jaffna, nor did it take into account evidence from Amnesty International that the previous targeting of his brothers by the Sri Lankan security forces "would enhance any existing suspicions of Mr Ponnudurai's political affiliations". It did not consider the evidence relating to these matters, nor did it take account of the intensification of the conflict in Sri Lanka which had only just begun at the time he left, and has continued since. It did not consider the evidence of numerous and regular acts of mistreatment of Tamils in Colombo as a guide, not certain, but indicating the real chance that Mr Ponnudurai, though it found him not to have suffered personally in the past, might suffer persecution within the Convention in the future. It is, of course, clear law that a member of a victimised group (whether identified by race, political opinion or otherwise within the Convention) could have a well-founded fear of persecution, though he or she had been able in the past to escape harm entirely: Perampalam v Minister for Immigration and Multicultural Affairs (1999) 55 ALD 431 at 438; Mohamed v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 666 at 673; El Merhabi v Minister for Immigration and Multicultural Affairs [2000] FCA 42 at para 23. As Toohey J said in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 406, "it is fear of persecution of which Art. 1A(2) [of the Convention relating to the Status of Refugees] speaks, not the fact of persecution". So Mr Short's disbelief of the applicant's allegations of personal harm suffered in Colombo could not conclude the matter. It should be noted that, not only did the Tribunal fail to consider whether the applicant would be at real and relevant risk even if it was correct that he had not personally suffered in the past, but also, the finding that he had not suffered in the past was made without regard to its incongruity in the light of the general evidence. For he had given an account which was entirely consistent with a great body of evidence about events in Colombo during the period in question. The general evidence would make it appear that Mr Ponnudurai was remarkably lucky if, as the Tribunal found, he was not arrested and mistreated on any of the occasions to which reference was made. Had the Tribunal conceded weight to that consideration, it might have held, consistently with the reasoning of the joint judgment in Guo (at 576; 579-580), and despite its failure to be persuaded by the applicant's own word, that there was some degree of probability supporting his evidence, or some similar version of events, which was required to be taken into account in assessing the future. This form of reasoning is sometimes described as asking: What if I am wrong? But to adopt it is really to recognize that there may be a degree of probability that events have occurred, even if the Tribunal is not convinced that they actually have occurred: Guo (at 574 and 576; 578 and 579-580); cf Chetwynd-Talbot v Chetwynd-Talbot [1963] P 436 at 447-448, approved by the Court of Appeal in Howarth v Howarth [1964] P 6 at 15-17; Minister for Immigration and Multicultural Affairs v Al Husaini [1999] FCA 1307 at para 12 (the two English cases provide striking illustrations of the principle involved, since the findings with which they were concerned were findings of adultery after contested hearings, but the Court of Appeal held the chance of error still had to be recognized). Where there remains some degree of probability that a relevant event has occurred, the Tribunal "must take into account the chance" of the occurrence: Guo (at 576; 580). That is an obligation of law. 16 The respects in which I have found the Tribunal's reasons wanting cannot be dismissed as mere infelicities of expression, or errors perceptible only upon an over-refined analysis: cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. They concern fundamental issues in the case. Any doubt that the Tribunal meant what it said when it grounded its rejection of a real chance that the applicant would be persecuted in the future upon its rejection of his account of his past experiences in Colombo, is dispelled by a passage in the transcript of the hearing before the Tribunal, to which express reference is made in its reasons. Mr Short said to the applicant: "Now, if I don't accept your evidence in relation to you having been summoned to the CID headquarters in February 1996, I wouldn't take the view that you were at particular risk of being persecuted if you return to Sri Lanka either by reason of the fact that you're Tamil or because you would be suspected of being a supporter of the LTTE. The information available to me suggests that those most at risk of arrest in Colombo are young Tamils, particularly who risk you [sic - quaere scilicet who recently] travelled from the North or the East. And now, you've been a resident of Colombo for around six years. You held a prestigious position there, and you will no doubt be able to obtain employment readily again. That suggests to me that you wouldn't fit the profile of the sort of people who are most at risk of being arrested in Colombo." When Mr Short referred to this passage in his reasons, he said: "I put to the Applicant that if I did not accept his evidence with regard to his having been summoned to the CID headquarters in February 1996, I would not accept that he would be at particular risk of being persecuted if he returned to Sri Lanka by reason of his race (Tamil) or his imputed political opinion (support for the LTTE). I put to him that the information available to me suggested that those most at risk of arrest were young Tamils, particularly those who had recently travelled from the North or East … . … I put to him that, as I had already indicated, my suggestion that he would not have problems was predicated on my finding that I did not believe that he had had these problems with the police and the CID".

17 For these reasons, the Court orders that the decision of the Refugee Review Tribunal be set aside, and that the matter be remitted to the Tribunal, differently constituted, for determination according to law. The respondent must pay the applicant's costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burchett J.

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 11 May 1999 (RRT transcript received 19 July 1999)