Santhikumar v Minister for Immigration and Multicultural Affairs

REASONS FOR JUDGMENT 1 This is an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 16 November 1998 by Subramaniam Santhikumar ("the applicant") and members of his family. The family members are Santhini Santhikumar, Sankavi Santhikumar and Sangavi Santhikumar, who are the applicant's wife and two daughters respectively, and Nesamany Kanagasabapathy, who is the applicant's mother-in-law. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") refusing to grant the applicant, his family and his mother-in-law protection visas. A criterion for the grant of such a visa is that an applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention"): see s 36 of the Migration Act 1958 (Cth) ("the Act"). 2 The applicant, his wife and eldest daughter are citizens of Sri Lanka who arrived in Australia in April 1994. The second daughter was born in Australia. The applicant's mother-in-law is also a citizen of Sri Lanka and arrived in Australia in September 1996. The applicant applied to the Department of Immigration and Multicultural Affairs ("the Department") for a protection visa on 9 November 1995 and the applicant's mother-in-law applied for the same class of visa on 24 December 1996. On 26 August 1997 a delegate of the Minister refused to grant the protection visas. After considering the circumstances of the applicant (his wife and two daughters being included in his application by operation of item 1126 in Schedule 1 to the Migration Regulations) and the applicant's mother-in-law separately, the Tribunal affirmed the delegate's decision. Art 1A(2) of the Convention contains, for present purposes, the definition of refugee. It provides: … the term 'refugee' shall apply to any person who; … (2) owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality in being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it. 3 The gravaman of the applicant's case before the Tribunal was that he feared persecution if returned to Sri Lanka because the authorities believe he is associated with the Liberation Tigers of Tamil Eelam ("LTTE"). The case of the applicant's mother-in-law similarly raised fear of persecution for reasons of perceived connections to the LTTE. The Tribunal's treatment of claims of the applicant and the applicant's mother-in-law will be considered separately. The claims of the applicant 4 The Tribunal's reasons detail the applicant's evidence given at each stage of the application process and can be summarised as follows. In a statutory declaration accompanying his application to the Department the applicant said that he was a Sri Lankan Tamil from the north of Sri Lanka. He completed his secondary education on the Jaffna Peninsula and then studied at the University of Peradeniya near Kandy in the Central Province of Sri Lanka. The applicant said that his younger brother had been heavily involved with the LTTE but he, by contrast, had decided to honour his mother's wishes and go to university. When the university closed for two months in 1985 the applicant returned home and helped the LTTE by keeping watch outside the army camp at Point Pedro. In 1987, when trouble with the Sinhalese insurgent group Janatha Vimukthi Peramuna (JVP) began, the applicant and all other young men in his area were detained, marched to Point Pedro and kept for two days without food. While some of the applicant's friends were detained beyond that time, the applicant was released. 5 The applicant stated that at the time when the Indian Peace-Keeping Force ("IPKF") had been in Sri Lanka, he had been taken to an IPKF camp and beaten with plastic pipes. On one occasion he was also detained for twelve hours at an IPKF checkpoint while travelling to visit his mother in another part of the country, but was not harmed. The applicant graduated from university in February 1990 and was appointed to the permanent post of assistant lecturer in February 1991. He was married in May 1990. In June or July 1990 two of his Tamil colleagues disappeared. In March 1991, the house where he and his wife had been living was stoned, and then two days' before he was due to leave for Tokyo to study for his masters degree, the applicant and two other Tamils were arrested because their National Identity Cards showed that they came from Point Pedro. They were held overnight before the applicant's wife managed to obtain their release with the assistance of a justice of the peace. 6 After completing his studies in Tokyo the applicant and his wife returned to Sri Lanka in September 1993. In December 1993 the applicant was awarded a scholarship to study at Sydney University which he took up and he and his family left Sri Lanka in April 1994. Between September and December 1994 the applicant published two pieces of writing in a particular internet site (the "Tamil Circle") which he had thought was read only by Tamils. One article cast doubt on the capacity of Sri Lankan leader Chandrika Kumaratunga to bring peace to the area and the other article was an appeal to Tamils to forget their differences and support the LTTE. The applicant did not keep copies of either article. He said that he stopped posting articles and comments in Tamil Circle when he heard that some articles from there had been published in the Colombo Daily News. 7 The applicant said that from October 1994 to May 1995 he and his family sublet a room in their flat to a Sinhalese woman they knew through Tamil friends. The applicant openly discussed his views about the Sri Lankan situation with the woman, although he knew that she had a brother in army intelligence. Relations with the woman became difficult after unrest again arose in Sri Lanka and eventually the applicant and his wife asked the woman to leave. The applicant said that the woman complained to his wife that he was the problem because he was a Tiger and hated the Sinhalese. The applicant said that although he did not know whether this woman had told her brother about his opinions, he had to assume the worst, and it was no longer safe for any Tamils in Sri Lanka. 8 At the Departmental interview the applicant said that at the time he had come to Australia he could have applied successfully to migrate on the basis of his skills. He had had no intention of applying for refugee status, as he had a university position in Sri Lanka. It was only after he arrived and various incidents had occurred that he changed his thinking and decided to apply for refugee status. The Departmental officer put it to the applicant that it must have been obvious that anyone could have read what he posted on the internet. The applicant replied that he had published the articles through email to which only certain people had access. The Departmental officer asked the applicant why he had written a letter supporting the LTTE directly. The applicant responded that he had not supported the LTTE directly, but rather had written in support of Tamils because he believed that Tamils could only obtain respect in a separate nation in Sri Lanka. 9 The applicant told the Departmental officer that the last information he received was that if he returned to Sri Lanka he would be arrested and tortured by the Sri Lankan army and police and would be killed. He said that he had been told this in letters from his landlord and friends. The applicant said that the army and police had gone to his friend's house, found some books of his, and had asked questions about him. He also said that he had two cassette tapes of songs supporting the Tigers which he had obtained during the period of the ceasefire between the Government and the LTTE in 1990. The applicant produced copies and translations of letters from his landlord and friends to support these claims. 10 The applicant's representative made submissions to the Department in March 1997 seeking to clarify certain matters raised at the Departmental interview. He said that the applicant had not posted the articles he had referred to on the internet, but rather had sent them to an email discussion group with a limited number of subscribers. It came to the applicant's knowledge later that Sinhalese had infiltrated the group using false Tamil names. He said that had he known of this, he would have avoided writing to the discussion group. The applicant stated that he had not considered it dangerous to discuss his political opinions with the Sinhalese woman to whom he had sublet a room because she had been well educated and had many Tamil friends. In relation to the cassette tapes, the applicant said he had purchased the LTTE songs because he liked the music, and not because they were in support of the LTTE. 11 The applicant's representative submitted that the security forces in Sri Lanka were looking for anyone with any connection to the LTTE and if they found such a connection there was a high likelihood of the person in question being detained and tortured. Evidence was produced which referred to police torturing detainees in a significant number of cases. The representative further submitted that the security forces were unable to distinguish LTTE cadres from ordinary Tamils so that Tamils were frequently treated as responsible for LTTE atrocities. 12 At the hearing before the Tribunal the applicant was asked what involvement he had had with the LTTE while he had been living on the Jaffna Peninsula. He responded that many of his friends were involved in the LTTE and he had sometimes been asked to observe the movements of the army. He had not otherwise been directly involved in any activities. The applicant said that he had supported the cause the LTTE was fighting for, but had argued with some of his friends because he believed that some activities of the LTTE were wrong and unacceptable. However he had participated in processions, and while in Australia had been involved in protest marches and hunger strikes against the Sri Lankan government. The applicant said that while studying in Japan he had written a letter to the Japanese government arguing that funds given to the Sri Lankan government for development were being used to buy weapons. He said that he had not had any contact with the LTTE while in Australia. 13 When asked to clarify why he had sent an email to a Tamil discussion group appealing to Tamils to support the LTTE, the applicant said that he had not been asking Tamils to support the LTTE, but rather had argued that the struggle for Tamils should not be given up on the assumption that Chadrika Kumaratunga would solve the problems. He had argued that the struggle of the Tamils should not be abandoned and that only the LTTE would be able to carry on the struggle. It was not a simple call to Tamils to support the LTTE. The applicant also told the Tribunal that two of the lecturers he had worked with at university had been arrested and interrogated and the authorities had learned that he had connections with these two persons. The government had said these two people were Tigers and because the applicant had been linked to them they had accused him of being a Tiger as well. The applicant said that this had occurred in July 1996 but that he had heard about it later. 14 The Tribunal asked the applicant why he had not referred to the troubles arising from the arrest of his two friends at the Departmental interview. The applicant responded that he had not known from the letter he had received why the authorities were looking for him, and had assumed it was because the cassette tapes had been found. He had only found out about the arrest of the two people very recently, through a telephone call from a friend in Canada. He said that he assumed it was a combination of the arrest of these persons, the articles he had submitted to the discussion group, and the views of the Sinhalese woman who had been living with them. The applicant also said the letter written to him by his landlady in Peradeniya stated that the police and army were still interested in him. The letter, dated February 1998, stated that a police inspector had come to her home to ask where the applicant was and whether she was in contact with him, and that the inspector threatened to arrest them if they did not notify the police in the event the applicant returned to Kandy. 15 The applicant maintained that the army and police were presently searching for him and that according to one witness, every member of staff at his university had branded him a Tiger. He said the army had enough proof to accuse him of being a Tiger because they had found the cassettes. He said that the LTTE was a banned organisation and someone found in possession of one of their cassettes would be punished severely. Now that there was a law passed to this effect, the applicant believed he would definitely be tortured or killed. The two people he knew that had been arrested had not yet been released and he believed he would be in the same position. 16 The applicant asked that the Tribunal take evidence from a witness, Mr Kanagaratnam. The witness said that he had attended the University of Peradeniya between February 1992 and January 1998. He said he did not know the applicant prior to meeting him in Australia, however in his final year of university had heard that the authorities were searching for someone of the applicant's name. A close friend of the witness told him he had been questioned about this. The witness said he had remembered the applicant's name because he had never been involved in something like that before and it was a big issue for him. The witness rejected the Tribunal's suggestion that this story was untrue and concocted to support the applicant's case. 17 The Tribunal put it to the applicant that his evidence regarding the arrest of his two friends was a fabrication intended to strengthen his application for refugee status. The Tribunal also suggested that the picture the applicant had portrayed of his situation in Sri Lanka did not suggest that he would face persecution on his return and that at the time he left he had not had a well-founded fear of being persecuted on his return. The applicant agreed that he had not had particular fears, only a general fear. 18 The applicant's representative submitted a further written submission after the Tribunal hearing. In that document the applicant stated that although he had previously said that he had not been physically harmed or mistreated in Sri Lanka apart from the incident where he had been beaten with plastic pipes by the IPKF, he had since learned of how the United Nations and other human rights organisations classified mistreatment, harassment and torture and wished to submit that he had in fact been mistreated, harmed and harassed whenever he had been arrested. 19 In relation to the suggestion that the applicant's claims relating to events which had occurred since he had been in Australia had been fabricated to support his application, the applicant told the Tribunal that if he had wanted to make false claims he would have said that he had been in army custody for a long time and that he had been tortured or forcibly recruited by the LTTE. The applicant also said that when he made his original application he had not been aware that the police had found his cassette tapes containing songs in support of the LTTE. He said that it was wrong to assume that the police would have known he was in Australia, as they had been searching for him at the houses of his former landlady and of senior lecturers. 20 The applicant's representative made a number of further submissions in writing on 22 October 1998. These included that the fact the applicant came from the town of Valvedditturai, the well known birthplace of the leader of the LTTE, raised a claim of persecution by reason of membership of a particular social group. The representative referred to a report from August 1996 which said that soldiers had killed a student at a temple in Point Pedro because his identity card showed that he came from Valvedditturai. The applicant's representative submitted generally that the LTTE had evinced a policy of exacerbating and inflaming ethnic tensions and in this context a genuine fear of the LTTE pervaded Colombo. The sense of fear felt by Tamils in Kandy in particular, after the bombing of the Temple of the Tooth by the LTTE in January 1998, would make Kandy and its environs unsafe for Tamils for some time to come. There was a general danger to Tamils in Sri Lanka and a particular danger to Tamils known or suspected to hold pro-LTTE opinions.