Sathiyanathan v Minister for Immigration & Multicultural Affairs

The Visa Application and the Tribunal's Decision 2 The circumstances giving rise to the appellant's visa application can be narrated briefly. For present purposes it is sufficient to rely primarily upon the narrative contained in the appellant's written submissions. Mr Sathiyanathan is a male Sri Lankan of Tamil ethnicity. He arrived in Australia on 16 May 1997 and shortly thereafter applied for a protection visa. His claims founding his application fell into two categories. The first related to harms suffered and events occurring in the period 1983-1995; the second to harm allegedly suffered early in 1997. 3 As to the first of these, he referred to ethnic riots in July 1983 in which four relatives were killed after which his two brothers joined the Liberation Tigers of Tamil Eelan ("LTTE"). In September 1984 he was detained by the police, interrogated, beaten and questioned about his brother. In 1985 he was again arrested and tortured. After that his family moved to Jaffna where in July he was detained for two days and beaten by members of the Indian peace-keeping force. At Jaffna University he avoided joining the LTTE but rather joined a student movement under the auspices of that organisation. Between 1990 and 1995 as a student, he was involved in helping wounded LTTE fighters and in digging bunkers. In 1995 as the Sri Lankan army approached Jaffna the appellant and his family fled to Trincomalee. There he had a business buying and selling televisions and radios. He married in August 1996 and arranged through an employment agency to get a job in Japan where he went in September 1996. 4 The second category of his claims relate to events that allegedly occurred in 1997. He worked in Japan until January 1997 when he returned to Trincomalee to see his wife. After staying with her for several weeks he came to Australia in February 1997 for a short period and then returned to Colombo en route to Japan on 26 February 1997. He was then arrested and accused of coming home to plant a bomb. This accusation was suggested, apparently, by reference to plans for a house he brought back from Australia. He was detained until 3 March. He claims that on 28 February and subsequently he was questioned and beaten severely. On 12 March 1997 he was detained, interrogated and released. On 20 April 1997 two young people came to his home introducing themselves as from the LTTE and demanded he pay them money, which he did. On 1 May 1997 he was arrested by government soldiers who detained him for ten days, beat him severely and accused him of being a member of the LTTE. He was ordered not to leave Trincomalee and to return to the army camp where he was detained on 27 May 1997. Instead, on 16 May 1997 he fled to Australia. 5 The Tribunal accepted in substance the appellant's claims and narrative relating to the period 1983-1995. It nonetheless did not consider that those facts meant "that the Applicant has a well founded fear of being persecuted for a Convention reason if he returns to Sri Lanka now or in the foreseeable future". The Tribunal went on to observe: "By his own account, the Applicant made his way back to Trincomalee toward the end of 1995, passing safely through government security checks at Vavuniya. He established a business in Trincomalee and had no major problems with the Sri Lankan security forces. From September 1996 until January 1997 he worked in Japan and then he returned to Sri Lanka, which suggests that at that time he did not fear that he would be persecuted on his return. Indeed the Applicant does not claim that he held such a fear. He claims that his fear arises from the events which occurred after his return to Sri Lanka from Australia in February 1997." 6 In relation to the appellant's 1997 claims, the Tribunal took quite a different view from that taken in relation to the 1984-1995 claims. While accepting that the appellant had quite genuinely been traumatised by some event or events in Sri Lanka, it did not accept he was telling the truth in relation to his 1997 experiences on his return to Sri Lanka in February of that year. The Tribunal engaged in a very close analysis of the appellant's own evidence, of inconsistencies within it and of inconsistencies between it and other evidence that was put in in support of his claim. It described his own and his supporting evidence (a letter from a Sri Lankan lawyer) as fabrications. 7 During the course of the hearing before it - at which the appellant was represented - the Tribunal indicated to his representative that: "[I]f I accepted the Applicant's account of what had happened to him after his return to Sri Lanka at the end of February 1997 then I would accept that he was a refugee. If, on the other hand, I found that his account was fabricated, then I would conclude that he was not a refugee, because (despite the previous problems that he might have had) he had had no problems in Trincomalee before he had gone to Japan and he had been able to leave for Japan and to return without apparent problems". 8 In submissions provided to the Tribunal the applicant's representative raised a series of issues relating to the profile and race of the appellant which could be said to found a fear of persecution. Reference was made in this to his family connection with LTTE members and to assistance he gave when a student at Jaffna to the LTTE. The Tribunal did not consider these matters would attract the adverse attention of the Sri Lankan authorities. Another such matter was that he was a refugee "simply upon the basis of the experience of many people like him in the north and east of Sri Lanka and the human rights situation in Sri Lanka, especially for Tamils". The Tribunal had in its narrative of the background circumstances in Sri Lanka described the political situation in the country and, in relation to the human rights situation in the east of the country it referred to a report of the Department of Foreign Affairs and Trade of April 1998 which described the human rights situation as remaining bleak and which it then proceeded to illustrate. In response to the above submission, the Tribunal indicated that it did not consider that: "the evidence before me establishes that all Tamils in Sri Lanka have a well founded fear of persecution for the purposes of the Convention merely by reason of their race (or their nationality, if Tamils are regarded as a nation) or their imputed political opinion. I have borne in mind that the security situation in the East of Sri Lanka continues to be tense as reflected in the advice from the Australian Department of Foreign Affairs and Trade … . Nevertheless I do not consider that the Applicant is in danger of harm amounting to 'persecution' if he returns to Sri Lanka now or in the foreseeable future." 9 The Tribunal again went on immediately to note the situation of the appellant in Trincomalee from the end of 1995 until he returned from his visit to Australia in 1997.

The Appeal 10 We granted leave at the commencement of the hearing to amend the grounds of appeal better to reflect the written submissions the appellant had filed in the appeal. The two errors now ascribed her Honour's decision are that she failed to find (i) that the Tribunal did not address whether by reason of all of the claims made by the appellant, including those relating to events prior to 1997, the appellant had a well-founded fear of persecution for a Convention reason; and (ii) that the Tribunal erred in asking whether all Tamils would have such a well-founded fear. We should state at the outset that we do not consider there is substance in either ground. We would add that much of the appellant's submissions were directed to the proposition that the Tribunal had made errors in the way it had considered the evidence and issues before it. Although this occurred under the rubric of a consideration of the primary judge's reasons it was of little assistance in understanding why it was said that the primary judge fell into error. The Court wishes to emphasise that an appeal to the Full Court in a refugee matter should not be taken as an occasion to re-consider the Tribunal's reasons as distinct from considering the primary judge's reasons. 11 It was clearly open to the Tribunal to disbelieve the appellant's account of what occurred to him in 1997 on his return to Sri Lanka and equally it was open to it to conclude that, having accepted he had been traumatised by some event or events in Sri Lanka, that (i) would not of itself bring him within the definition of a refugee and (ii) would not of itself prove that his account of the 1997 events was true. 12 The Tribunal having made its findings in relation to the events over the period 1983-1995 - and it should properly be taken as having accepted the appellant's version of them - made an explicit finding that those facts as found did not mean that the appellant had a well founded fear of being persecuted for a Convention reason. As it did at several places in its reasons, the Tribunal tested or justified that conclusion by immediate reference to (a) the appellant's circumstance between the end of 1995 until his return from Australia in 1997 and (b) its rejection of what transpired thereafter. It plainly is the case that the Tribunal gave particular attention to whether the appellant had, or continued to have, the requisite fear in 1997 and thereafter. In that regard it noticed that the first references he made to being in fear related to his detention in May of 1997. But the appellant, it should be said, made the 1997 events the catalyst to his leaving Sri Lanka. On a fair reading of the Tribunal's reasons, having regard to its post-1995 findings, the Tribunal should properly be taken as finding that pre-1995 events standing alone could not now give rise to a well founded fear of persecution. To use counsel's common law analogy, whatever the significance of the pre-1995 claims, there had thereafter been a break in the chain of causation. We can see no error in the Tribunal's reasoning. There was no constructive failure on its part to exercise its jurisdiction in relation to the pre-1995 claims. Accordingly, we would reject the first of the claims advanced by the appellant. 13 The second error alleged against both the Tribunal and her Honour - that the Tribunal applied an erroneously high test in relation to Tamils - has to be seen in the context of the submission that the Tribunal was addressing. It had been put to the Tribunal that the appellant was a refugee (inter alia) simply upon the basis of the experience of people like him in the north and east of Sri Lanka and of the human rights situation in Sri Lanka, especially for Tamils. As we have indicated, the Tribunal in response to this submission did not consider that the evidence before it established that all Tamils in Sri Lanka have a well founded fear of persecution for the purposes of the Convention merely by reason of their race or their imputed political opinion. As an observation made in response to the actual submission put this may not be particularly helpful but neither is it particularly significant. It is merely a statement concerning the burden of the evidence before the Tribunal as evaluated by the Tribunal. And the Tribunal had already made findings adverse to the appellant concerning his profile and imputed political opinion arising from his family association with LTTE members and his life on the Jaffna Peninsula while it was under LTTE control. The important part of the Tribunal's conclusion in our view is in the balance of the paragraph in which the challenged "all Tamils" observation is found. The Tribunal makes reference - albeit more mutedly than did the Department of Foreign Affairs and Trade - to the situation in the east of Sri Lanka. It then made its express negative finding as to whether the appellant was in danger of harm amounting to persecution if he returned to Sri Lanka. But it followed this with its view of the appellant's circumstances from the end of 1995 until 1997. It was in our view appropriate for this latter material to be referred to as relevant to the submission that had been put. 14 Though this part of the Tribunal's reasons could have been more felicitously expressed, the conclusion arrived at by the Tribunal does seem to us to have been correctly characterised by her Honour in her reasons particularly when regard is had to the other "profile" findings the Tribunal made concerning the appellant. Her Honour observed at [21]: "I do not consider that the Tribunal adopted the inappropriately harsh test of requiring the applicant to establish that all Tamils in Sri Lanka have a well founded fear of persecution. Rather, the Tribunal considered the position of the applicant himself in two stages. First, would he attract the adverse attention of the Sri Lankan authorities by reason of anything that he had done in the past. Secondly, would he attract the adverse attention of the Sri Lankan authorities by reason of who he was: that is a Sri Lankan Tamil with his particular profile. The Tribunal in my view is to be properly understood as having concluded that the applicant's own past experiences established both that his past activities would not cause him to attract the adverse attention of the authorities and that he was not at real risk either now or in the foreseeable future simply by reason of his profile." 15 We reject the second of the grounds of appeal. 16 We would dismiss the appeal. The appellant has submitted that no order for costs should be made against him, the appeal being itself reasonable given the deficiencies in the Tribunal's reasons. We reject both the criticism of the reasons and the submission. We order the appellant to pay the respondent's costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Finn, Marshall and Goldberg.

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