Soosaipillai v Minister for Immigration & Multicultural Affairs

Judgment (12 paragraphs)

[1]

REASONS FOR JUDGMENT WHITLAM J: 3 I have had the advantage of reading in draft the reasons for judgment of Carr J, where the background to this appeal is set out. I agree with his Honour that the appeal should be dismissed with costs and, except for the question of extortion, I do so for the reasons he gives. 4 In my opinion, the Refugee Review Tribunal ("the Tribunal") dealt separately with the issues of relocation to Colombo and persecution in Colombo. The Tribunal referred in its reasons for decision specifically to the evidence given by the appellants on the second issue. It said (at 7): "The Applicants were asked if they would be harmed by the authorities if they relocated to Colombo. The Applicanthusband responded that there are people from Jaffna itself who are there to point out to the authorities who are connected to the LTTE. These are Tamils from non-LTTE organisations. Some of them extort money from other Tamils. The Applicants believe that they would be connected with the LTTE because of FFFF, and so would be at risk of harm, even in Colombo." 5 As Carr J mentions [26], the Tribunal found that the appellants' connections with FFFF did not place them at any real risk of persecution. The relevance of extortion in the context of persecution thus disappeared in the light of that finding. The Tribunal mentioned this finding again in the reasons for its conclusion that the appellants would not be at risk of persecution in Colombo. It said (at 12-13): "I note that there are differing assessments of the situation for Tamils in Colombo, though there seems to be general agreement that many Tamils are arrested and detained as a result of attempts by the government to prevent terrorists activities by the LTTE. Most of those arrested are released quickly and without being harmed. Some of those who are suspected of assisting the LTTE are subject to torture and severe mistreatment. I acknowledge that it is possible that the Applicants will be stopped at checkpoints or have their papers checked in sweeps conducted by the Sri Lankan authorities. I note also that the Applicants are elderly Tamils. For the reasons outlined above I am not satisfied that they are connected, in the eyes of the authorities, with the LTTE. I am satisfied that the chance that the Applicants will be arrested by the Sri Lankan authorities and caused such serious harm as to amount to persecution is remote." (Emphasis supplied). 6 Nor, on the basis of the appeal papers, do I accept that extortion was raised as a discrete issue before the primary judge in the context of persecution. The written submission made on behalf of the appellants at first instance (which is set out in Carr J's judgment [41]) suggests to me a quite different point. The ugly device of writing "and/or" has been used to place extortion in a list with arbitrary arrests and detention. The use of the word "given" assigns "the age and apparent frailty" of the appellants as the matters allegedly not addressed. The submission does not single out extortion. It asserts an error of law where harassment compendiously described as "arbitrary arrests, detention and/or extortion"

factual background and the tribunal's reasons 8 The following factual background is taken largely from the reasons of the learned primary judge which in turn was taken largely from the Tribunal's reasons. 9 The first appellant (now aged 70), who is a citizen of Sri Lanka, arrived in Australia on 11 July 1996. On 9 January 1997 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. His wife (now aged 63), the second appellant, was included in the application. On 19 February 1998 a delegate of the Minister refused to grant a protection visa. On 18 March 1998 the appellant applied to the Tribunal for a review of that decision. 10 The Tribunal commenced its reasons with a discussion of the well-settled principles which govern the operation of the Refugees Convention. The Tribunal did not err in this connection, and nor was it suggested that it did. 11 The Tribunal next described the claims and evidence before it. The appellants are elderly Tamils from Jaffna. All but one of their seven children have left Sri Lanka. The appellants have not been in contact for many years with their eldest son who remains in Sri Lanka. The other children are resident in Europe and in Australia. The appellants travelled to Australia on Sri Lankan passports issued in their own name. 12 The Tribunal, in describing the claims and evidence before it, noted that the appellants claimed that should they return to Sri Lanka, they would be at risk of persecution by the local authorities because they are Tamils and are suspected of supporting the LTTE. The primary reason for this suspicion, according to their claims, was that an anonymous person described as FFFF, for whom the appellants acted as guardians, is an LTTE activist. 13 FFFF is a son of the second appellant's sister. In 1988 that sister died, having previously requested that the appellants take care of her three children, including FFFF. In 1990 FFFF joined the LTTE, although the appellants did not approve. However, they reluctantly maintained their guardian relationship. The appellants claimed that anyone who has relatives in the LTTE is at risk of harm from the army. 14 The Tribunal referred to the fact that in 1995 the Sri Lankan army captured Jaffna. The appellants claimed that from then they were at risk. The Tribunal noted the claim that recently FFFF had been involved in attacks on an army base and that this had been reported in local newspapers. The Tribunal further noted that the appellants believed that they would be harmed because of their connection with FFFF. 15 The Tribunal observed that the appellants had been issued with passports in 1995 and that in 1996 had passed through check points when travelling from Vavuniya to Colombo, without any apparent difficulty, notwithstanding that FFFF had been in the LTTE since 1990. The Tribunal said that when the appellants were asked why they would be at greater risk of harm now than they were then, they had responded that there were now more informers from anti-LTTE Tamil organisations who are assisting the Sri Lankan authorities by identifying those Tamils with LTTE relatives or similar connections. They said that at the time the passports were issued, the authorities were not searching for people much, but they now are. 16 The appellants claimed that since they had left Sri Lanka the army had retaken their village and that it is only now that the army are seeking out the LTTE and relatives in the area. The Tribunal noted that the appellants' son had given evidence to the Tribunal that he had wanted the appellants to come to Australia to assist him and his wife in looking after his children. 17 The Tribunal went on to note the claim of the appellants that in late 1994 their eldest son was taken away by the LTTE, on the suspicion of being associated with a former senior politician who had fallen out with the LTTE. They claimed that their nephew, who was a priest, had secured their son's conditional release and he had been given a pass to go to Colombo for one month. The appellants claimed that when their son did not return as arranged, the first appellant was detained by the LTTE and held for two weeks in unsanitary conditions where he became ill. Their nephew then secured his release as well. 18 The appellants had now been advised, they claimed, that their house in their village had been destroyed. It appears that most of the houses and the church in that village have been destroyed and the Sri Lankan army is searching in that area for LTTE members and their relatives, killing them. 19 The Tribunal had asked the appellants whether they could return to another part of Sri Lanka, for instance, Colombo. Their response was that they do not believe that they could return to Colombo as they have no relatives or support there. They do not speak Singhalese or English and without children or relatives it is not possible to survive in Colombo. Property owners are reluctant to rent premises to Tamils, the appellants claimed, and they would languish there. The appellants claimed that they would have problems with the police and the army and that there were many people in Colombo who extort money from Tamils. They claimed that most of the lodge owners are Muslim and that some of them have arrangements with the police so that when Tamils are taken in by the police, money is paid and the lodge owners and the police share the proceeds. 20 The Tribunal turned next to express its findings and its reasons. The Tribunal said that it was satisfied that the appellants were Sri Lankan nationals and that they were Tamils from the north of Sri Lanka, that the first appellant was sixty-nine and the second sixty-two years of age, that the first appellant had been a fisherman in his village, that they speak only Tamil, and that they have never lived in Colombo. 21 The Tribunal noted that the appellants had come to Australia at the invitation of their son who said that he needed their assistance with a difficult domestic situation. The Tribunal found that, at least in the eyes of their son, their trip to Australia was "made in order to assist him, rather than to flee persecution". The Tribunal went on, however, to say: "I note that this is not necessarily inconsistent with the Applicants having a genuine fear of persecution. It may be, for instance, that they have such a fear, but were waiting for an opportunity to leave Sri Lanka. That opportunity may not have arisen until their son had need for their assistance in Australia." 22 The Tribunal further said that, given the number of children the appellants have overseas and the relative wealth of their son in Australia, the foregoing "does not seem an especially likely explanation. One would expect if the appellants were living in fear of persecution that their children would have done more for them than send money". The Tribunal then said "I did not find the Applicants' evidence to be particularly persuasive as to their claims to have a genuine fear of persecution, or generally, for that matter". 23 However, the Tribunal went on to say that it would give the appellants the benefit of some doubt and expressed its satisfaction that the appellants had a genuine fear that they would be persecuted should they return to Sri Lanka and that it was for the reasons of that fear, at least in part, that they were unwilling to return to Sri Lanka. 24 The Tribunal noted that some of the appellants' children had been associated with the LTTE but that all, except one, of those children were now out of Sri Lanka and that the appellants have had no contact for many years with their remaining son. The Tribunal found that the appellants' home had been visited by the LTTE and that the appellants had been forced to provide financial and other assistance to the LTTE. The Tribunal found that the appellants were, for a time, guardians for FFFF who was a relative and that they believe he remains in Sri Lanka as an active member of the LTTE. 25 The Tribunal observed that the appellants made no claim that the Sri Lankan authorities had harmed them or identified them with the LTTE in the past. The Tribunal said: "I am satisfied that the Sri Lankan authorities had not connected the Applicants with the LTTE at the time of their departure. I am not satisfied that this position has changed in their absence. I am satisfied that no pro-LTTE political opinion[s] have been imputed to the Applicants by the Sri Lankan authorities." 26 The Tribunal noted the evidence that FFFF had recently been involved in an attack on an army base and that he had been active in the LTTE since 1990, but the Tribunal found that the appellant's connections with FFFF did not put them at any greater risk or any real risk of persecution. 27 Noting that the appellants' house and much of their village had been destroyed in the conflict, the Tribunal accepted that "it may well be impractical for the Appellants to return to their village". 28 The Tribunal then referred to the evidence of the appellants and their son that it would be unreasonable for the appellants to relocate to Colombo and, in any event, that they would be at risk of persecution there. The Tribunal said that it was not satisfied that this was so. 29 The Tribunal then embarked upon a lengthy consideration of the position in Sri Lanka, and in Colombo in particular, picking up at various points of the consideration, extracts from independent country information in the possession of the Tribunal. It noted that security measures in Colombo took two forms. First, when an attack was thought to be imminent, or immediately after one had taken place, the security forces, the Tribunal found, conducted large scale arrests of Tamils in operations known as round-ups or "cordon and search" operations. Examples of that were then given, including one instance where 1,000 people were detained until their bona fides were established. The Tribunal stated that those at particular risk of being detained in round-ups or cordon and search operations were young Tamil men and women recently arrived from the north and the east. 30 The second form of security measure in Colombo mentioned by the Tribunal was that there are check-points throughout Colombo where everyone is required to produce evidence of their identity. According to the Danish Immigration Service, as cited by the Tribunal, at a check point everyone is stopped and asked to show his or her identity card. Those who lack identity cards or other proof of identity, who have no relatives in Colombo or speak only Tamil, the Tribunal found, were at particular risk of being detained at check points. 31 The Tribunal stated, again citing the Danish Immigration Service, that Tamils not originating from Colombo will be questioned about the purpose of their stay in Colombo and whether they are registered with the local police. The Tribunal said that as with the round-ups, young Tamil men and women formed a particularly vulnerable group, especially those who had just come from the north. The Tribunal went on to say that a report from the Australian Department of Foreign Affairs and Trade ("DFAT") in September 1988 stated that mass arrest of Tamils and large scale round-ups had ceased since April 1998, partly because there had been no major security incidents in Colombo since March 1998. 32 However, the Tribunal cited more recent advice from DFAT, given in June 1999, about cordon and search operations and arbitrary arrests at check-points following recent bombings. 33 DFAT had advised that of those arrested, around 95 per cent were released within twenty four hours. Of the 5 per cent who remained in detention, some might be released within days, while others might be held for a much longer period of time. The Tribunal observed that human rights groups had advised that around 40 per cent of those detained under the Emergency Regulations and the Prevention of Terrorism Act in Colombo had complained of being tortured or showed signs of being tortured. 34 The Tribunal said that physical mistreatment not amounting to torture was not uncommon in Sri Lankan law enforcement. The Tribunal also said that overall the majority of people arrested under the Emergency Regulations and the Prevention of Terrorism Act were Tamils detained in connection with LTTE activities. The Tribunal then cited a report from the US State Department in 1998 on that subject. 35 The Tribunal further noted that DFAT, in a country information report dated 3 September 1999, had stated that there was no age limit on arrest during cordon and search activities in Colombo, but had noted that it is Tamils in the higher risk profile (that is, young males from the north and east) that were generally more likely to be detained. The report also stated that older Tamils who cannot speak Singhalese may find it difficult to organise the necessary clearances to relocate to Colombo. 36 The Tribunal said that relocation to Colombo would not be without difficulty for the appellants. The Tribunal said "[o]f course, after spending their life in a village, any relocation would have some difficulty". 37 The Tribunal recognised that there were differing assessments of the situation for Tamils in Colombo, although there seemed to be general agreement that many Tamils were arrested and detained as a result of attempts by the government to prevent terrorist activities by the LTTE. The Tribunal said that most of those arrested were released quickly without being harmed and that some of those who were suspected of assisting the LTTE were subject to torture and severe mistreatment. The Tribunal acknowledged the possibility that the appellants would be stopped at check points or have their papers checked in sweeps conducted by the Sri Lankan authorities and noted also that the appellants were elderly Tamils. 38 The Tribunal said, for the reasons previously given, it was not satisfied "that they are connected, in the eyes of the authorities, with the LTTE". The Tribunal said that the chance that the appellants would be arrested by the authorities and caused such serious harm as to amount to persecution was "remote". However, the Tribunal noted that the first appellant was detained and mistreated by the LTTE in 1994, but that his nephew had secured his release and that the appellants had alleged that they have had any problems from the LTTE since. The Tribunal therefore said that it was not satisfied that the appellants were at any risk of persecution from the LTTE and, accordingly, that it was not satisfied that their fear of persecution was well-founded.

the decision at first instance, the appeal and my reasoning 39 I think that it is convenient to describe his Honour's reasons, to the extent that it is necessary to do so, on a progressive basis in tandem with and in the context of those grounds of appeal which were pressed before us. 40 The first ground of appeal, numbered as Ground 2(a)(i) in the Notice of Appeal, was that the primary judge erred in finding that the Tribunal had committed no error of law referrable to s 476(1)(e) of the Migration Act 1958 (Cth) ("the Act") in its consideration of whether the appellants faced a well-founded fear of persecution for a Convention reason in Colombo. The essence of the appellants' complaint was that although the Tribunal had acknowledged that they might be exposed to extortion at the hands of their own or other communities in Colombo, the Tribunal, so it was submitted, made no attempt to decide whether such extortion as the appellants might suffer might amount to persecution, and if so, whether it would be at least partially referrable to a Convention reason, being race or imputed political opinion, or both. There was some debate before us about whether this matter had been raised at first instance. The transcript of the proceedings before his Honour was not made available to us, but we were given a copy of the appellants' outline of submissions at first instance. 41 Paragraph 18 of that outline of submissions (at first instance) read as follows: "18. Moreover, the Tribunal has not attempted to address the issue of whether arbitrary arrests, detention and/or extortion would, given the age and apparent frailty of the applicant and his spouse be persecutory. That too is an error of law." 42 I am satisfied that the issue of extortion which the appellants seek to raise in Ground 2(a)(i) was thus raised before the primary judge. Before his Honour the appellants claimed that the Tribunal had erred in its consideration of whether they faced persecution in Colombo for a Convention reason, both in the context of their landing in Colombo to try to return to Jaffna and in the context of their attempting to settle in Colombo. They submitted that the Tribunal had failed to address the question whether they, although not amongst those who would primarily be at risk of severe mistreatment, might still be exposed to a lesser but still material risk of persecution in the context of security measures taken to uncover and prevent Tamil Tiger operations in Colombo. His Honour rejected that submission for reasons contained in paras 45-50 of his reasons for judgment. I respectfully agree with those reasons. His Honour did not deal specifically with the issue of extortion. I think that this must have been because he considered that the point was subsumed in the Tribunal's factual finding that it was reasonable for the appellants to relocate to Colombo. 43 The question is whether that assessment was correct. 44 When I first read the Tribunal's reasons, I thought that there may have been some substance in this ground of appeal. 45 However, on further consideration, I have formed the view that the ground has not been made out. 46 At page 9 of the Tribunal's reasons it said this: "I note the evidence of the applicants and their son that it would be unreasonable for them to relocate to Colombo, and in any event they would be at risk of persecution there. I am not satisfied that this is so." 47 [From this it can be seen that the Tribunal was considering both the issue of whether it would be reasonable for the appellants to relocate to Colombo and also the issue of whether they would be at risk of persecution in Colombo.] 48 The Tribunal then referred to certain country information about the conflict in Sri Lanka generally and, in particular, the security measures taken in Colombo, the last of which was DFAT's Country Information Report dated 3 September 1999. The Tribunal then resumed its reasons (starting with a reference to that report) in the following terms: "The Report also stated that older Tamils who cannot speak Singhalese may find it difficult to organise the necessary clearances to relocate to Colombo. I note that relocation to Colombo would not be without difficulty for the Applicants. Of course, after spending their life in a village, any relocation would have some difficulty. I note that they have no relatives in Colombo and do not speak Singhalese or English. They would need to find accommodation and to register with the authorities. This process will no doubt be stressful and difficult. They may need financial or other assistance from their children. I note that the Applicants have already proved themselves able to organise a journey from Vavuiniya to Colombo, passing through, and to travel on to Australia. * The Applicants may be exposed to some extortion by ruthless members of their own and other communities. I also note that there are many Tamils who have relocated to Colombo, and who have managed to find accommodation and to register with the authorities. * I am satisfied that, with some assistance from their children, that the Applicants could overcome the difficulties involved in relocating to Colombo." [Emphasis added] 49 The sentence which I have set out above in bold type is, I think, a reference to some evidence from the first appellant and the appellants' son about extortion in Colombo of Tamils who have relocated there. The Tribunal had earlier in its reasons summarised those claims in the following manner: "There are many people in Colombo who seek to extort money from the Tamils. Most of the lodge owners are Muslims. Some of them have arrangements with the police so that when Tamils are taken in by the police, money is paid and the lodge owners and police share the proceeds." 50 The Tribunal then, in a manner which I do not consider exceptionable in any way, gave its reasons for its conclusion that it was satisfied that the chance that the applicants would be arrested by the Sri Lankan authorities and caused such serious harm as to amount to persecution was remote and that the applicants were not at any risk of persecution from the Tamil Tigers. 51 The appellants' complaint was that the Tribunal had only dealt with the question of extortion in the context of whether it would be reasonable for the appellants to relocate to Colombo, not in the context of persecution for a Convention reason. 52 Although I concede that the matter is not free from doubt, I think that a fair reading of the Tribunal's reasons shows that it dealt with the two issues of relocation to Colombo and persecution in Colombo simultaneously. As to arrest by the Sri Lankan authorities involving such serious harm as to amount to persecution, the Tribunal made a specific finding (see p 13 of its reasons) that the chance of this happening was remote. It found that most of those arrested were released quickly and without being harmed. The Tribunal acknowledged that it was "possible" that the appellants would be stopped at checkpoints or have their papers checked in sweeps conducted by the Sri Lankan authorities. It must, I think, be taken to have implicitly found that such a possibility did not make it unreasonable for the appellants to relocate to Colombo. 53 On the matter of extortion, I think that in the above two paragraphs beside which I have placed asterisks the Tribunal can be seen to have made an express finding that the possibility of exposure to some extortion, when considered with the assistance which the appellants' children could provide, did not make it unreasonable for the appellants to relocate to Colombo. Implicit in that finding, in my view, is the Tribunal's conclusion that the possibility of such exposure to extortion did not amount to a real chance of persecution for a Convention reason. I accept the respondent's submission that the Tribunal's finding that it would not be unreasonable for the appellants to relocate to Colombo necessarily means that the possibility of exposure to some extortion, a possibility which could be overcome with assistance from the appellants' children, did not amount to persecution. One would have far greater confidence in reaching that conclusion if the Tribunal had dealt separately with the issues of persecution for Convention reason and reasonableness of relocation. An error of law can occur where the two issues are conflated: Modh v Minister for Immigration and Multicultural Affairs [2000] FCA 1865. In that case the Tribunal required that the reason why the applicant could not reasonably relocate be a reason relating to one of the five grounds of protection in the Convention. The Tribunal in this matter did not do that. 54 Next [as part of its submissions in relation to Ground 2(a)(i)] the appellants complained that the Tribunal, when considering whether they would be persecuted in the course of security measures, had limited itself to the question whether they would be specifically suspected of being LTTE sympathisers. The Tribunal, so the appellants submitted, appeared to have considered the facts that they were not in the group most at risk, and that most people were released unharmed, to be decisive of the issue of persecution. The appellants contended that the fact that they might not be amongst those who were primarily at risk of severe mistreatment did not mean that they were not at a lesser, but still material risk, of persecution especially being frail and elderly persons whose lesser ability to tolerate mistreatment made them correspondingly more susceptible to persecution. The appellants contended that the Tribunal, by failing to address these issues, had erred in law. 55 In my view, a fair reading of the Tribunal's reasons shows that this complaint is not made out. The Tribunal specifically noted the DFAT Country Information Report dated 3 September 1999 that there was no age limit on arrests during cordon and search activities in Colombo. Its reasoning in the next two pages shows that it made a specific assessment of the likelihood of the appellants being persecuted in the manner feared. It then made the factual findings referred to above which were quite clearly open to it on the evidence. I do not consider that it erred in law. In my view Ground 2(a)(i) has not been made out. Ground 2(a)(ii) was not pressed. 56 Next [Ground 2(1)(b)] the appellants submitted that the primary judge erred in finding that the Tribunal had committed no error of law in dealing with the issue of internal relocation to Colombo. They contended that his Honour should have "looked behind" the Tribunal's conclusion that relocation was reasonable, because its failure to consider two issues going to the heart of reasonableness indicated that the Tribunal had misunderstood the test which it was required to apply. Those two issues were whether a significant risk of being the victim of extortion could be "reasonable" and the issue of how increasing frailty, along with lack of familial support, might affect the appellants' ability to continue to live in Colombo. 57 I have already expressed the view above that the Tribunal considered and made an express finding that, in the particular circumstances of this case, the possibility that the appellants might be exposed to some extortion did not make it unreasonable for them to relocate to Colombo. The Tribunal took into account the availability of assistance from the appellants' children in that context. The Tribunal was also well aware of the appellants' ages and made specific reference to the fact that they were "elderly Tamils". As his Honour pointed out (in para 52 of his reasons) reasonableness of relocation is not only a question of fact, but one of assessment and judgment. The essence of the appellants' submission is that the Tribunal misunderstood the test which it was required to apply, whether or not it correctly recited that test. On a fair reading of its reasons, I do not think that has been established. Ground 2(1)(b) is not made out. 58 Finally [Ground 3], the appellants complained that the Tribunal failed to give reasons or to refer to evidence or other material upon which it relied in being satisfied that the Sri Lankan authorities had not connected the appellants with the LTTE since their departure from Sri Lanka. Counsel for the appellants pointed out that the Tribunal had accepted that FFFF had led an LTTE attack on an army base in 1999 (after the appellants had departed) and, as a result one of his relatives was detained by the security forces and his house was razed. He submitted that although the past was a guide to the future, this new event increased the likelihood of reprisals being taken against the appellants. 59 At p 8 of its reasons the Tribunal noted the evidence that FFFF had recently been involved in an attack on an army base. It also noted that FFFF had been active in the LTTE since 1990 and that all the appellants' connections with the LTTE were of long-standing. In my view, it was open to the Tribunal to rely on those circumstances when it said: "I am not persuaded that the Applicants' connections with FFFF will place them at greater risk now than in the past. . . . I am satisfied that if anything was to be made of those connections, by the Sri Lanka authorities or anyone else, it would already have happened." 60 I think that the Tribunal sufficiently gave its reasons and identified the evidence upon which it relied for not being persuaded that the recent involvement of FFFF in the attack on the army base would put the appellants at greater risk than in the past. Its reasoning can be seen to have been based on the appellant's connections with FFFF and what, if anything, the Sri Lankan authorities might now make of those connections in the light of this latest incident. As the connections were long-standing and as FFFF had been active in the LTTE since 1990, the Tribunal reasoned that the latest incident would not put the appellants at any greater risk than in the past. I do not think that it had to elaborate on those reasons. Ground 3 has also not been made out. In my opinion, the Tribunal complied with its obligations under s 430(1)(b) and (d) of the Act.

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Judgment (12 paragraphs)

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