Shanmugavarathan v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 The applicant is a Sri Lankan citizen of Tamil ethnicity. He seeks review of a decision of the Refugee Review Tribunal given on 25 February 2000 affirming a decision of a delegate of the Minister not to grant him a protection visa. The Tribunal was not satisfied that the applicant was a refugee within the meaning of the Refugees Convention, that is to say a person who "owing to 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 and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it."

The applicant's case 2 The applicant was born on 14 December 1953 in the Parish of Valvettihurai which is at the northernmost tip of Sri Lanka and in the Jaffna District. 3 He completed his education with tertiary study in accountancy and secured employment in this field. From November 1982 to July 1984 he worked outside Sri Lanka. In July 1984 he returned and attempted to find work in Colombo. This was a difficult period after the communal pogrom in July 1983 so the applicant decided to go to the north and live with his parents and sisters. He found the situation in Jaffna also to be very difficult. The family home was damaged in the fighting and at the end of October 1984 the family fled from their village to Jaffna City. At this time the applicant concluded that a separate nation for Tamils was essential for them to live with dignity. He became convinced that it was "justifiable to rise against tyranny and oppression". He decided to give some assistance, and when he was approached by cadres of the Liberation Tigers of Tamil Eelan (LTTE) he agreed to help them with his expertise as an accountant. 4 In February 1985 the applicant was offered employment in Oman for two years. Before he departed he was asked by members of the LTTE to raise funds while he was there. He agreed and subsequently raised funds as requested. He was careful in his dealings with the LTTE and they had implicit faith in him. This trust was supported also by the fact he and the leader of the LTTE, Prabakaran, had been classmates in their primary school days. 5 On 10 March 1987 the applicant returned to Sri Lanka and on the following day left for Jaffna where he stayed with his family for nearly two months. After the explosion of a bomb in Colombo at the Pettah Central Market the Sri Lankan government began major aerial bombardments of the Jaffna Peninsula. The applicant and his family fled from their home which was damaged by a direct hit. 6 In May 1987 the applicant again left for Oman and continued his fund raising activities. During this period the applicant heard of the deaths of many of his relatives during another military operation by the Sri Lankan government. There followed an accord between India and Sri Lanka and the introduction of the Indian Peace Keeping Force (IPKF) to Sri Lanka. 7 In August 1988 the applicant returned to Sri Lanka. In September he became engaged to his present wife. In October 1988 he returned to Oman and continued further fund raising for the LTTE. 8 In May 1989 the applicant returned to Sri Lanka and while in Jaffna with his wife was arrested by the IPKF and interrogated. He was detained for several days and severely tortured by the IPKF and members of the EPRLF, an anti-LTTE Tamil organization. The reason for this detention was that he came from the birthplace of the LTTE leader. He was released by intervention of his uncle who was a lawyer and a member of the Citizens' Committee. In a detailed statement lodged with his protection visa application the applicant said: "Immediately after my release I left for Colombo. Colombo was considered as a safe place for Tamils during that period because the LTTE and the Premadasa government directly engaged in peace talks and the atmosphere was cordial. Thereafter I didn't return to Jaffna." 9 Presumably at some unspecified time the applicant left the country. He continues: "I returned to Sri Lanka in February 1990 following the withdrawal of IPKF and EPRLF and my wife joined me in March 1990 to [sic] Oman since I was given family status by my employer." The applicant remained in Oman until July 1994. He continued his fund raising activities. 10 In September 1995 the applicant's contract in Oman ended and he and his wife returned to Sri Lanka in the second week of October. At that point the situation was "horrendous and disastrous. The arbitrary arrest and detention reached a point of zenith in Colombo and its suburbs in addition to disappearances and extra‑judicial killing." 11 The applicant and his wife decided to go to Jaffna as they had no permanent place in Colombo, the applicant did not have employment, and those in Colombo were requested to register themselves with the police. But apparently he did not in fact leave Colombo until the following year. 12 The applicant contacted his brother in Australia who then sent an application form for the applicant to migrate under the Special Assistance Category. The applicant's brother had previously in 1989 urged the applicant to migrate to Australia but at that time the applicant was happy with his work in Oman. He lodged an application for a special assistance visa with the Australian High Commission in Colombo in November 1995. Because he feared for his own safety and that of members of his family the applicant did not disclose his political fund raising activities. 13 The situation in Colombo became more dangerous after the Central Bank bomb explosion on 31 January 1996. The relatives with whom the applicant was staying became reluctant for him to remain with them further and he therefore applied for a visitor's visa to Australia. This was refused in February 1996. 14 On 20 April 1996 the applicant was arrested, detained at Kotahena police station and brutally assaulted. He was transferred from the police to the Counter Subversive Unit (CSU) and further assaulted and tortured by its officials. He says that apparently the reason for his arrest was that he was from Valvettithurai and had recently returned from abroad. He was released on 22 April with some others and directed to appear in court when notified. 15 After his release the applicant left Colombo and in May 1996 went with his wife to Puthukudiyiruppu where his parents and sister were living following their displacement from Valvettithurai due to the military offensive. In a subsequent statement lodged with the Tribunal on 4 May 1998 the applicant says that he and his wife "went to northern part of Sri Lanka our native place". The fighting became worse and by February 1997 the applicant decided that he had to leave the country by any means and for this reason went to Colombo with his wife. 16 On 10 March 1997 in Colombo the applicant was arrested by EPDP cadres and taken to an unauthorised detention camp. He was tortured for about a week and later released on payment of 70,000 rupees. After his release a friend arranged for the applicant to stay with a colleague in Hatton. Arrangements were made through an agent and a passport provided to the applicant. His exit was obtained by bribery of authorities at the airport. The applicant travelled to Australia and arrived on 24 May 1997. In his statement dated 10 July 1997, the applicant makes his apology to the Australian authorities for travelling on a forged passport but explains that it was because of the trauma and torture he suffered in Sri Lanka. 17 The applicant submitted that the general situation of human rights in Sri Lanka has deteriorated very badly. There is particular risk to Tamils. There were many reports which support this. 18 The applicant's claims concerning the dangerous situation for Tamils in Sri Lanka was supported by a submission from Amnesty International. 19 At the hearing the applicant also gave evidence of his involvement in making pro‑Tamil broadcasts on 3CR, an ethnic radio station in Melbourne. The applicant stated also that he had attended two demonstrations in Australia against visiting Ministers of the Sri Lankan government, one in Canberra and the other at the Hilton Hotel in Sydney. These demonstrations were filmed and at least one video of the demonstration had been shown in Sri Lanka. The applicant feared that film of him attending the demonstration would be shown in Sri Lanka and that his face would be identified and that he would therefore be at further risk of persecution should he return.