Santhikumar v Minister for Immigration and Multicultural Affairs

The claims of the applicant's mother-in-law 21 In a statutory declaration of February 1997 the applicant's mother-in-law said that she was a Sri Lankan Tamil born on the Jaffna Peninsula. Her one daughter was the applicant's wife. Her one son had been accused of being a member of the LTTE and had been taken into custody by the Sri Lankan army in August 1984. Her husband, who died in 1985, had paid a bribe of 20,000 rupees for his release and they had sent him to France to avoid any further trouble. She said that even after he had left the country the army still came to the house looking for him. 22 The applicant's mother-in-law said that she had left her home in Tellippalai in 1987 because of the fighting, and when she returned the house had been badly damaged. She repaired what she could and continued to live there. She said that IPKF soldiers had come to the house and threatened her, hit her and stolen her jewellery. In 1990 her house had been completely destroyed by shelling and she had to move to a town ten miles away. She said she had been forced to pay 10,000 rupees to the LTTE. In July 1995 she fled to Achchuveli when the Sri Lankan army started to advance towards Jaffna. In September 1995 the army captured Achchuveli and she had remained there. Soldiers came to her house and accused her of sheltering LTTE guerillas. They saw a picture of her son and questioned her about whether he was a Tiger. She said they had grabbed her by the throat and threatened her until she fell unconscious, and then ransacked and looted her house. 23 The applicant's mother-in-law said that soldiers came to her house on several further occasions and accused her of supporting the LTTE and her son of being a Tamil Tiger (the Tribunal's reasons note that at the Departmental interview she had said that the soldiers pulled her hair and scolded her). She said that at the end of September 1995 she fled to another part of Sri Lanka with the help of her neighbours. She travelled to other parts of the country before finding refuge at a school in Vavuniya. From there she contacted her daughter and the applicant in Australia but they were unable to help her, so she contacted her son in France. Her son advised her to travel to India so that he could arrange a flight to France. The applicant's mother-in-law travelled to Colombo where she paid an agent 100,000 rupees to arrange her flight to Madras. When she arrived in Madras she discovered that her son had been unable to arrange her flight to France and she returned to Sri Lanka six days later.

24 When the applicant's mother-in-law returned to Sri Lanka she was unable to travel to Jaffna because of the fighting. She had been unable to stay in Colombo because she did not know anyone and did not speak Sinhalese. She went to a refugee camp and said she was in fear of her life arising from army retaliation over an LTTE attack on an army base. She telephoned her daughter in Australia who said that she would try to arrange for her to get out of Sri Lanka. The applicant's mother-in-law then fled to Colombo where she stayed with a university friend of her daughter and with her help obtained a visa to travel to Australia. She paid 50,000 rupees to an agent to arrange this and arrived in Australia in September 1996. 25 The applicant's mother-in-law told the Tribunal she feared she would continue to be harassed by the Sri Lankan army if she were to return to Sri Lanka. She also feared the LTTE would harass her for money because her children were overseas and were considered to be rich. She could not return because she was weak and sick and feared for her life. 26 At the Tribunal hearing the applicant's mother-in-law was asked whether she had difficulty passing through the Government checkpoint at Vavuniya when she had travelled to Colombo in September 1995. She responded that people had to queue at checkpoints and were asked questions about where they were going. After the checking, the army had taken them to a refugee camp, housed in a school. The applicant's mother-in-law told the Tribunal that she had not stayed in India after she had travelled there in October 1995 because she did not know anyone and the agent she travelled with had told her that she could not remain there. 27 When asked why she had not remained in a Government-controlled area on her return from India, she said that she had been afraid to remain in Vavuniya because her entire family had been branded supporters of the LTTE and she had feared someone might inform on her. The Tribunal put to the applicant's mother-in-law that the fact she had been able to pass through the Government checkpoint in both 1995 and 1996 suggested that the Sri Lankan authorities did not see her as a supporter of the LTTE. When asked whether any of the pro-Government militant Tamil groups had extorted money from her in Colombo in 1996, she replied that one group had asked for 100,000 rupees but as she did not have this much she had paid them 25,000 rupees.

28 The applicant's mother-in-law told the Tribunal that she could not live in Colombo because she did not speak Sinhalese or English. When the Tribunal put to her that there were hundreds of thousands of Tamils in Colombo, she responded that she did not have any relatives and did not know anyone in Colombo. She said that there was always "checking" and that the police arrested everyone. The Tribunal told her that although checking was a nuisance, it did not amount to persecution. The Tribunal also put to her that information before the Tribunal stated that only a small percentage of people arrested were detained and the vast majority were released after 24 to 48 hours. The Tribunal suggested that there was only a remote chance that she would be regarded as a security threat in Colombo. She responded that if someone informed on her, saying that she was a supporter of the LTTE, she would be arrested and kept in detention. She said that she had undergone a lot of suffering in 1995, which the Tribunal accepted. She said that she could not return to Sri Lanka as her son had been gone for 14 years and her son-in-law was in trouble. The Tribunal's conclusions 29 The Tribunal's reasons dealt extensively with background information on the political situation in Sri Lanka, detailing in particular the relationship between the Government and the LTTE. The Tribunal also referred to Australian Department of Foreign Affairs information on the security situation in Colombo as at February 1998. The Tribunal then turned to consider the claims of the applicant and the applicant's mother-in-law. 30 The Tribunal did not find the applicant a credible witness and considered that he would say whatever was required to advantage his application, without regard to the truth. The Tribunal concluded that the applicant had frequently adjusted his evidence to overcome any doubts raised, particularly in relation to his account of the arrest of the two persons in July 1996 and his ownership of the cassettes containing LTTE songs. The Tribunal considered the applicant's failure to mention at the Departmental interview the alleged telephone call he received from a friend in Canada indicated that the evidence was fabricated to support his claims about why the Sri Lankan authorities were searching for him in Kandy. The evidence of the witness who appeared on behalf of the applicant to corroborate this was viewed by the Tribunal as implausible. 31 The Tribunal stated that it could accept some of the applicant's claims if he had committed a crime of some notoriety, such as masterminding one of the LTTE's attacks. However the applicant's claims were that he was accused of possessing two cassette tapes containing LTTE songs and possibly also of having links with two people who he said the authorities had accused of being involved with the LTTE. The Tribunal found the evidence that this was commonly talked about at the university and that the authorities were searching for the applicant to be implausible. The Tribunal rejected the witness's testimony to this effect as not true. 32 The Tribunal also did not accept that the applicant had ever been sought by the authorities in Sri Lanka since the time he left for Australia in 1994. The Tribunal viewed the evidence about the telephone call received from Canada as a fabrication, other supporting evidence as tailored to suit his application, and stated that the applicant could not be accepted as a witness of truth. Having regard to these findings on credibility, the Tribunal did not accept the applicant's evidence about the article he claimed to have sent to a Tamil discussion group on the internet. The applicant's evidence had been inconsistent concerning the content of this article, and in any event the Tribunal did not accept that it would have attracted the attention of authorities in Sri Lanka. The Tribunal likewise did not accept that the applicant had attracted the attention of the authorities because he had discussed his political opinions with the Sinhalese woman whose brother was involved in army intelligence. The Tribunal rejected the assertion that the Sinhalese woman had accused him of being a Tiger, or that she had a brother in army intelligence. The Tribunal also did not accept that the applicant had participated in protest marches or hunger strikes against the Sri Lankan Government while in Australia, or that, in any event, such protests had attracted the adverse attention of authorities in Sri Lanka. 33 The Tribunal accepted that the applicant may have been detained on three occasions by the IPKF between 1987 and 1990 and that on the second of these occasions he may have been beaten with plastic pipes. However as the IPKF left Sri Lanka in 1990, it no longer presented a threat to the applicant. In relation to the applicant clarifying his evidence about whether he had in fact been mistreated, harmed or harassed on the occasions he had been arrested, the Tribunal concluded that this represented another example of the applicant altering his evidence in a way perceived to be to his advantage. The Tribunal noted that the applicant had the assistance of legal representation in preparing his application and therefore did not accept that he was under any misapprehension about whether he should mention any harassment, mistreatment or physical harm which he might have experienced while he was in detention. 34 The Tribunal noted that the applicant had conceded at the hearing that he had not had particular fears at the time he left Sri Lanka, only a general fear arising from the continuing conflict in Sri Lanka. His claim therefore was that he had become a refugee sur place by reason of events occurring since he left Sri Lanka. To address this possibility, the Tribunal considered the current situation in Kandy, on the assumption that this would be where the applicant would return to live in Sri Lanka. The applicant's representative had submitted that the situation for Tamils in Kandy had become worse since the LTTE bombing of the Temple of the Tooth in January 1998. The Tribunal noted however that while there had been instances of mob violence in Kandy in the wake of the bombing, there was no evidence to suggest that this mob violence was encouraged or condoned by the Sri Lankan Government. The Tribunal further observed that it was not aware of any other incidents of racially-motivated violence in Kandy since January 1998. The Tribunal stated that it was satisfied on the evidence that the Government of Sri Lanka has provided in the past and will continue to provide a level of protection to the Tamil community in Kandy sufficient to remove a real chance of persecution by racially motivated mobs. 35 In relation to the submission that the applicant has a well-founded fear of persecution by reason of his membership of the "particular social group" of persons born in Valvedditturai, the Tribunal said, assuming it was a group for Convention purposes, the evidence did not establish that members of such a group are singled out for persecution by reason of their membership of that group. The applicant's representative had only provided evidence of a single incident where a student with an identity card indicating he was born in Valvedditturai was killed by soldiers at a temple in Point Pedro. The Tribunal stated that it was not possible to "draw a general rule" from this incident, and the applicant himself had not suggested that he had been detained at any time in the past because his identity card indicated he was born in Valvedditturai. The Tribunal concluded that it did not accept that one press item referred to by the applicant's representative supported the view that all Tamils born in Valvedditturai are imputed with pro-LTTE political opinions simply because they share a birthplace with the leader of the LTTE. 36 The Tribunal also did not accept that all Tamils in Sri Lanka are in danger of being persecuted. This view was said to be supported by the applicant's statutory declaration detailing his experience in Sri Lanka before he left to come to Australia, which the Tribunal described as isolated incidents of racial abuse not sufficiently serious to constitute persecution. The Tribunal reiterated its view that the applicant's fear of further detention could be qualified by information which suggested that the vast majority of those detained at checkpoints were released after 24 to 48 hours. Although the applicant had asserted that this information was Sri Lankan Government propaganda, the Tribunal stated that to the extent of any inconsistency it preferred the official information. The Tribunal also said that it considered detention of Tamils in the context of security measures applying in the south of Sri Lanka as conduct appropriately designed to achieve some legitimate end of government policy, as discussed by McHugh J in "Applicant A" v Minister for Immigration & Multicultural Affairs (1997) 190 CLR 225. The Tribunal concluded that the applicant did not have a well-founded fear of being persecuted for a Convention reason were he to return to Sri Lanka in the foreseeable future, nor was he a refugee sur place as a result of events occurring in Sri Lanka in the time since he had been in Australia. 37 In relation to the claims of the applicant's mother-in-law, the Tribunal accepted that she may have been threatened and mistreated by both the Sri Lankan army and the IPKF while she was living on the Jaffna Peninsula. However because the applicant's mother-in-law is over sixty years of age, the Tribunal rejected the suggestion that she could be regarded by the Sri Lankan authorities as a security threat. The Tribunal considered that the fact she was able to pass through security checkpoints without incident in both September 1995 and August 1996 suggested that she was not of interest to the authorities. There was nothing in evidence before the Tribunal to suggest that the applicant's mother-in-law had ever been sought by the security forces. The Tribunal rejected the suggestion that the applicant's mother-in-law feared someone might inform on her because her whole family had been branded LTTE supporters, as there was nothing in the evidence which indicated that the applicant's wife had been branded an LTTE supporter and the applicant's own claims to this effect had already been rejected by the Tribunal. The Tribunal considered it reasonable that the applicant's mother-in-law would continue to live with the applicant and his family on her return to Sri Lanka and if for some reason this was not possible, it was reasonable to expect that she could relocate to the relative safety of Colombo. 38 The Tribunal accepted that the applicant's mother-in-law may have faced an extortion demand from a pro-Government militant Tamil group, but considered that this was not because of her race or imputed political opinion but because, as she herself said, her children lived overseas and were considered to be rich. Any such extortion demands she might face upon return to Sri Lanka would also not be motivated by a Convention reason, but rather because of a perception that she has the money to meet such demands. The Tribunal did not accept that the applicant's mother-in-law held a well-founded fear of persecution for a Convention reason. Submissions in the Court 39 The applicant was unrepresented in the proceedings in the Court. In his application for judicial review dated 14 December 1998 he contended that he was aggrieved by the decision of the Tribunal on a number of bases. For ease of reference I will refer when I can only to the applicant and his circumstances and not his family and mother-in-law. The applicant's contentions were that the Tribunal failed to follow procedures established under the Act, the Tribunal erred in not considering the change in circumstances since the commencement of renewed hostilities between Sri Lankan Government forces and the LTTE since 1995, and the Tribunal erred in failing to determine the applicant's refugee status as at the date of application and with reference to more recent independent evidence available to it. The application also asserted that the Tribunal failed to consider separately and distinctly the claims of the applicant's mother-in-law, the Tribunal erred by failing to speculate on whether there was a real chance of persecution if the applicant were returned to Sri Lanka arising from his departure from Kandy, his family background and his political opinion, and the Tribunal erred in concluding that the applicant did not have a well-founded fear of persecution. 40 In an outline of submissions filed 2 March 1999 the applicant sought to elaborate on these contentions. In relation to the Tribunal's alleged error of law, the applicant essentially repeated the grounds of review set out in the application. As to the ground that the Tribunal failed to make findings on material facts, the applicant submitted that the Tribunal failed to make a clear, fair and effective decision, and erred in formulating and ventilating preliminary adverse views about the applicants and in rejecting every one of their claims. The Tribunal failed to sufficiently explore the facts and relied only on official information, and erred in foreclosing "reasonable speculation" on the chance of persecution emerging from the applicants' claims and the material before the Tribunal. Further, the Tribunal misdirected itself by stating that retaliation after the bombing incident in Kandy was not racially motivated. 41 The applicant also submitted that the Tribunal was referred to independent evidence current at 1998 which suggested that the applicant's chance of persecution had increased since departing Sri Lanka. It was suggested that the effect of this independent evidence was an increased likelihood of persecution for reason of political opinion imputed from involvement in assisting or supporting the LTTE. The applicant submitted that this was a material fact which the Tribunal failed to consider, and that overall the conclusions of the Tribunal were inconsistent with the overwhelming body of evidence. The applicant also submitted that the Tribunal failed to afford substantial justice pursuant to s 420(2)(b), however this claim does not give rise to a ground of review: see Eshetu v Minister for Immigration & Multicultural Affairs (1999) 162 ALR 577. 42 In written submissions filed 8 April 1999, counsel for the Minister summarised the claims of the applicant as detailed in the Tribunal's reasons and then submitted that the Tribunal found the applicant not to be a credible witness and this approach was not in error. The Tribunal pointed to inconsistent evidence, failure to raise claims at the earliest opportunity, implausibility, exaggeration and inconsistency with independent evidence as the basis of its findings on credit. These issues were matters rationally probative to the question of credit and as such the Tribunal's approach was similar to that endorsed by the Full Federal Court in Kopalapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 1126. 43 In response to the applicant's submission that the Tribunal failed to have regard to evidence of the current situation in Sri Lanka, counsel for the Minister submitted that the Tribunal had made a comprehensive summary of independent evidence about the situation in Sri Lanka, and the material relied upon was current to October 1998. There was thus no substance to this claim. On the submission that the Tribunal failed to give reasons and decide all issues, counsel submitted that the Tribunal's decision dealt comprehensively and carefully with each of the applicant's claims, and there was no substance to this ground. 44 The applicant lodged further submissions before the hearing, in reply to the submissions of counsel for the Minister. The applicant took issue with several details referred to by counsel for the Minister in his summary of the Tribunal's decision, and sought to clarify a number of these facts. The applicant then sought to answer the submissions of counsel for the Minister. A number of these submissions do not relate to the grounds of review identified in the Act and I do not repeat them. 45 On the issue of credibility, the applicant distinguished the conduct of the Tribunal in his case with that discussed in Kopalapillai (supra). The applicant submitted that the Tribunal took a wrong approach to credibility issues that was not open on the material before it or on the evidence as clarified by him. The Tribunal's decision lacked rational grounds and Kopalapillai should be distinguished. 46 On the issue of change of circumstances in Sri Lanka and the Tribunal's alleged failure to have regard to current evidence, the applicant submitted that there was not sufficient material to justify the Tribunal's conclusion that there had been significant changes in Sri Lanka. The applicant repeated the contention that the Tribunal failed to give reasons and decide all issues as required by s 430. This included the submission that the Tribunal failed to consider the question of whether there was a causal connection between the applicant's experiences and fear of being returned to Sri Lanka and his Tamil ethnicity and/or perceived sympathy for the LTTE. The Tribunal failed to recognise that the mistreatment, torture, detention and inhuman and degrading punishment aimed at Tamils in Sri Lanka is not a legitimate activity of the state but rather "indiscriminate cruelty" and a "generalised failure" of the government to adhere to basic standards of human rights. The applicant also submitted that the Tribunal failed to treat some of its information sources with caution, as such sources are linked to governments, are influenced by the need to maintain cordial relations between governments, and may be in conflict with the provision of accurate and impartial information about human rights in a country like Sri Lanka. 47 At the hearing, neither party significantly supplemented the written submissions already filed. However, the applicant did file further submissions after the hearing in response to some matters raised by counsel for the Minister at the hearing. The central submission related to the extortion demand made on the applicant's mother-in-law and its characterisation by the Tribunal as being related to her ability to pay rather than a Convention related ground. The applicant submitted that the facts of Perampalam v Minister for Immigration & Multicultural Affairs (1999) 84 FCR 274 were identical to the facts of his mother-in-law's situation as, like Perampalam, (supra) extortion had been directed at the applicant's mother-in-law because of her membership of the Tamil race. The applicant also submitted that his mother-in-law feared mistreatment and persecution because of her involvement with her son, son-in-law and daughter and as an elderly Tamil woman who feared mistreatment, torture and killing as a Tamil perceived to be an LTTE sympathiser or supporter, regardless of age or sex. The fear of the applicant's mother-in-law was also related to her status as a Tamil returning from abroad, who are regarded as LTTE sympathisers and face a real chance of persecution and human rights abuses by Sri Lankan armed forces and the police. 48 On the issue of credibility, the applicant submitted that the Tribunal failed to consider UNHCR guidelines which highlight the particular problems of proof faced by refugee claimants and recommend that applicants who are otherwise credible should, unless there are good reasons, be given the benefit of the doubt. Its rejection of the applicant's claims did not exhaust its obligation to consider the prospect that he might nevertheless be telling the truth in the context of fear of great harm. The Tribunal should have considered overall whether there was a real chance of the applicants being persecuted for racial and imputed political opinion reasons, notwithstanding the rejection of their account. The applicant submitted that the case of Pandari v Minister for Immigration & Multicultural Affairs [1998] FCA 1698 should be distinguished and Singh v Minister for Immigration & Multicultural Affairs [1998] FCA 1366 should be applied. 49 The applicant also submitted that the Tribunal failed to properly consider his claims about mistreatment in custody and stated that some of the vital submissions made at the Tribunal hearing about this fear of persecution were omitted from the Tribunal's decision. The applicant submitted that this represented a failure to make a finding on a material question of fact and the reasoning of the Full Federal Court in Paramananthan (supra), where the Tribunal was criticised for failing to consider whether mistreatment of young Tamil males in detention was motivated by a Convention reason, should be followed. The applicant submitted that the Tribunal had breached s 476(1)(a) of the Act by not by not making findings on material questions of fact as required by s 430(1)(c).

Conclusions 50 The application for judicial review, when read with the various written submissions made by the applicants, raises a number of issues that might reasonably be viewed as involving various grounds of review identified in s 476. Some of the grounds were expressly identified by reference to the provisions of s 476, others were not. No point was taken by counsel for the Minister about the form of the application. Accordingly I will endeavour to deal with each point of apparent substance raised by the applicant that can be legitimately raised having regard to the grounds identified in s 476. Some, however, may be dealt with briefly. An allegation of bias appears to be made: see s 476(1)(f). However I discern no basis for concluding that the Tribunal was not open to persuasion notwithstanding the critical approach it took to the evidence of the applicant. Nor is it apparent that there was any legal error of the type identified in s 476(1)(e) attending the Tribunal's decision concerning the time at which the position or status of the applicant was to be considered. However a specific and related issue was raised, namely that the Tribunal failed to consider or at least deal in its reasons with material advanced by the applicant concerning the more contemporary situation in Sri Lanka. This was said to establish a ground based on the combined operation of s 476(1)(a) and s 430. However that material, which were articles concerning events in Kandy after the bombing of the Temple of Tooth in January 1998, was referred to by the Tribunal and later figured in the Tribunal's consideration of the extent to which the authorities were willing and able to control mob violence potentially threatening to the applicant engendered by the bombing. The way the Tribunal dealt with this material does not disclose reviewable errror. 51 The next issue was whether the Tribunal failed to engage in speculation so as to ascertain whether the applicant had a well founded fear of persecution. Any such failure might establish an error of law of the type identified in s 476(1)(e). However, plainly the Tribunal did consider what might happen if the applicant (that is, Mr Santhikumar) was to return to Sri Lanka and it did so against a background of having determined what of the applicant's account of his past experiences in Sri Lanka it accepted or rejected. Its rejection of much of the applicant's account was in comparatively emphatic terms and I see no basis for concluding the Tribunal failed to engage in speculation on the basis that its findings concerning the applicant's past experiences and the rejection of much of his account of them were wrong: see Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719. 52 The position of the applicant's mother-in-law is slightly different. Two specific matters are identified as matters considered by the Tribunal in a way that may arguably manifest reviewable error. The first concerns her capacity to relocate to Colombo given that she does not speak Singalese. The second is that, as the Tribunal accepted, she may again be the subject of extortion demands were she to return to Sri Lanka. As to the second matter, the Tribunal's conclusion that any demands that might be made would be because of her perceived wealth was a finding open to the Tribunal having regard to the evidence actually given by the applicant's mother-in-law. It does not manifest legal error. As to the first matter, the Tribunal took into account the fact that the applicant's mother-in-law could not speak Sinhalese but viewed the fact that Colombo had a large Tamil population as a countervailing consideration. The Tribunal was entitled to do so. 53 The applicants have not established any ground of judicial review. I dismiss the application with costs. I certify that the preceding fifty three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Solicitor for the Respondent: Australian Government Solicitor