Thurairajah v Minister for Immigration & Multicultural Affairs

Proceedings before the Tribunal 3 The essence of the applicant's case before the Tribunal was that she will be subjected to persecution if forced to return to Sri Lanka because she is a Tamil who has reluctantly assisted the Liberation Tigers of Tamil Eelam ("the LTTE") and has been detained repeatedly by Sri Lankan authorities. The reasons for decision of the Tribunal commenced with a discussion of the relevant legislation and what is comprehended by the definition of "refugee" and by the notion of "persecution". Reference was made to the judgments of the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 and Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 and to the judgment of the Full Court of this Court in Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565. 4 In relation to the meaning of "persecution" in the Convention the Tribunal said: "Second, an applicant must fear persecution. In Applicant A, Gummow J at 284 referred to the primary meaning of the term "persecution" in ordinary usage: "The action of persecuting or pursuing with enmity or malignity; esp the infliction of death, torture, or penalties for adherence to a religious belief or an opinion as such, with a view to the repression or extirpation of it; …" Not every threat of harm or interference with a person's rights for a Convention reason constitutes "being persecuted". Mason CJ referred to persecution as requiring "some serious punishment or penalty or some significant detriment or disadvantage." (Chan at 388) Harm or threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group which is subjected to systematic harassment, amounts to persecution if done for a Convention reason. In appropriate cases it may include single acts of oppression, serious violations of human rights, and measures "in disregard" of human dignity. The persecution must have an official quality, in the sense that it is official or officially tolerated or uncontrollable by the authorities of the country of nationality. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors." 5 The Tribunal went on to note that the applicant's fear of persecution must be a well founded one. 6 The Tribunal considered the circumstances of the applicant in a section headed "Claims and Evidence". The Tribunal first noted that the applicant's claims were set out in written submissions to the Department, written submissions to the Tribunal and oral evidence given to the Tribunal. The Tribunal then set out what it understood to be the applicant's account emerging from that material, which is now briefly summarised. 7 The applicant is a Tamil woman from Jaffna. She was born there in 1965. At an early age, she moved with her family to Trincomalee, where she attended school. In a statement accompanying her application, the applicant referred to anti-Tamil riots in 1983 which had resulted in the harassment of Jaffna Tamils in Trincomalee. After the riots, the LTTE recruited Tamil youths in the Trincomalee district and the police arrested Tamil youths on suspicion of LTTE involvement. She was arrested and detained with other youths on such suspicion in 1984, but was released with the help of school priests. Also in that year, the LTTE requested that the applicant's father allow his children to join the LTTE. The applicant's father refused, and the LTTE requested money instead which he paid. In 1985, the LTTE renewed its request to the applicant's parents for her to join. 8 In 1985 the LTTE forcibly took the applicant to the jungle and required her to travel with and assist them. She refused to join, and eventually the LTTE returned her to her parents, demanded payment of more money and assaulted her father. In 1987, the Indian Peace-Keeping Force ("the IPKF") arrived in Trincomalee and began to harass Tamils on suspicion of LTTE involvement. The applicant was detained by the IPKF, kept for two days in filthy conditions, "severely tortured and harassed" and questioned about LTTE involvement. The applicant's release was secured by convent sisters and within one month she went abroad. She trained as a nurse in Pakistan and remained there till 1993. 9 The applicant returned to Trincomalee in August 1993. She wasshortly thereafter taken by the LTTE to a camp to assist them and remained there for three weeks until she agreed to help them in future. Subsequently, the LTTE began to come to her home and forced her to treat them, whereupon the applicant decided to leave Trincomalee. 10 The applicant then moved to Colombo and obtained employment. In January 1996, the Central Bank in Colombo was bombed and the applicant stated she was detained for three days by police and questioned and assaulted. When in Colombo the LTTE began ordering her to give them supplies from her workplace, under threat that they would inform police of her LTTE involvement. The Tribunal asked the applicant why she could not inform the authorities of this harrassment. The applicant stated that the LTTE would have informed the police in Sinhalese, and that the police would have believed the LTTE and not her. At the hearing, the applicant stated that she only stole supplies on one occasion and refused subsequent requests. The applicant claimed that the LTTE transported the supplies to Trincomalee and Batticaloa for sale at high prices to raise funds for the organisation. The applicant stated that she was arrested and taken to Criminal Investigation Department ("CID") headquarters, accused of LTTE involvement, and "assaulted and severely harassed and humiliated during the whole week of my arrest". The applicant claimed the CID officers demanded a 12,000 rupee bribe for her release and warned her to leave her job and the country as soon as possible. The applicant claimed that afterwards CID officers visited her house every second week until she left the country. 11 In its reasons the Tribunal considered aspects of this account under a heading "Credibility/evidence". The Tribunal noted that there were inconsistencies in the applicant's evidence. That discussion included the following observations and conclusions. While the applicant had asserted in the original statement accompanying her visa application that she began making arrangements to come to Australia after she made her visa application, she acknowledged at the hearing that she had begun making arrangements before that time. The Tribunal was satisfied that the application's earlier statement was incorrect. The Tribunal also recounted how, at the hearing, it had noted several instances where the applicant had appeared to be adapting her evidence to meet perceived difficulties as they arose. Additionally, the Tribunal indicated the applicant stated at the hearing, inconsistently with her original statement, that on her third arrest she was detained at the local police station (rather than CID headquarters). The Tribunal said: "The Tribunal is satisfied that the Applicant's account of this incident was not accurate or truthful. This has implications for the Tribunal's readiness to accept at face value her evidence about other matters." 12 Last, the Tribunal later stated: "In considering the genuineness of the Applicant's subjective fear, the Tribunal also has regard to the fact that the Applicant (having previously gone overseas in 1987) returned openly to Sri Lanka in 1993 (initially to the same town), remaining for more than three years before again leaving and travelling to Australia. The Applicant's return in 1993 demonstrates that at that time she did not have a subjective fear in relation to her stated experiences up to that time which prevented her from returning to her country of nationality." 13 The Tribunal considered the applicant's evidence and claims in a section in its reasons titled "Findings and Reasons". It first referred to circumstances in Sri Lanka generally. It then dealt with specific matters arising in the applicant's account. 14 As to the anti-Tamil disturbances in 1983, the Tribunal was satisfied that this episode did not of itself now give rise to a well-founded fear of persecution. The Tribunal noted that there had been no repetition of the event since 1983, that there was no evidence that the present Sri Lankan authorities would encourage, instigate or condone such an attack on the Tamil community, and that the government had demonstrated its preparedness to protect the Tamil community from such rioting by taking quick action after the bombing of the Buddhist Temple of the Tooth in Kandy in January 1998. 15 As to the applicant's claimed fear of persecution by the LTTE, the Tribunal was not satisfied that the LTTE recruiting practices, or the effect they had on the applicant in 1984-5, amounted to persecution. The Tribunal found that when the LTTE approached the applicant in Trincomalee in 1993, it intended simply to suborn the services of someone qualified to meet their needs and was not seeking to harm or punish her for a Convention reason. The Tribunal stated that while the applicant's involvement with the LTTE was involuntary and unwelcome, it did not amount to persecution for a Convention reason. The Tribunal then expressed difficulty with the applicant's claims concerning the stealing of supplies in Colombo for the LTTE. The Tribunal accepted that the applicant stole a small quantity of supplies one one occasion, but was not fully satisfied that she was forced to steal them by the LTTE, and did not accept that the supplies were transported to other cities and sold by the LTTE to raise funds. This latter claim the Tribunal found to be implausible. The Tribunal then stated that even accepting the applicant's account of this episode, it did not amount to persecution for a Convention reason, but rather was pressure for her to obtain a commodity the LTTE wanted. Last, the Tribunal found that it was open to the applicant to seek the assistance of the Sri Lankan authorities in Colombo and Trincomalee and stated that it was not satisfied the applicant would be unable to secure protection against the LTTE. The Tribunal concluded, on this issue, that the applicant had not experienced nor faces a real chance of persecution for a Convention reason at the hands of the LTTE. 16 As to the applicant's claims about the IPKF, the Tribunal accepted that in 1987 the applicant was detained, questioned and mistreated for two days by members of the IPKF and stated, "this was undoubtedly a most unpleasant experience". The Tribunal noted, however, that the IPKF left Sri Lanka in 1990 and found that, as no party in Sri Lanka advocates the re-introduction of Indian troops, there is no real chance of their return. The Tribunal was satisfied, on the basis that the applicant was subsequently able to openly leave Sri Lanka using a passport in her own name and to return to Trincomalee without encountering difficulties with the Sri Lankan authorities, that the experience with the IPKF did not of itself cause the applicant to have an adverse record with Sri Lankan authorities and did not provide a well-founded basis for any present fear of persecution. 17 The Tribunal next considered the applicant's claims to fear persecution, at the hands of Sri Lankan authorities, based on her detention by police in Trincomalee and in Colombo. The Tribunal first found, in relation to the applicant's detention in 1984 with other Tamil youths in Trincomalee, that the applicant's open return to Trincomalee demonstrated that "this isolated incident (or other events prior to her departure) did not engender in her a subjective fear which precluded her return". The Tribunal then referred to the two periods of detention in Colombo. The first followed the bombing of the Central Bank in January 1996 and lasted three days. The Tribunal noted that the applicant was released after her employer vouched for her and continued with her usual employment and residence for almost one year, and found that this "quick release demonstrates that after the checks she was not suspected of LTTE involvement, as under the circumstances of the time she would have certainly been retained in custody if such was the case". The second occurred after the applicant had stolen supplies from her workplace. The Tribunal did not accept the applicant's account of her arrest, detention and questioning, and did not accept that she was subsequently released on payment of a bribe on condition that she leave Sri Lanka. Alternatively, the Tribunal stated that even if such a bribe had been demanded, "it is difficult to see what Convention motivation was present or what chance of persecution for a Convention reason thereby arises on return to Sri Lanka". The Tribunal also noted that the above three incidents appeared to be unrelated. 18 Last, the Tribunal was not satisfied that the general circumstances prevailing in Sri Lanka provided the applicant with well-founded fear of persecution as a Tamil. The Tribunal noted that Tamils generally are detained and questioned as part of the Sri Lankan Government's security operations. However, the Tribunal stated: "Conduct will not generally constitute persecution if it is appropriate and adapted to achieving some legitimate object of the country, such as an object whose pursuit is required in order to protect the general welfare of the State and its citizens. Nor is the enforcement of laws designed to protect the general welfare of the State ordinarily persecutory even though the laws may place additional burdens on the members of a particular race, religion or nationality or social group. Thus, a law providing for the detention of the members of a particular race engaged in a civil war may not amount to persecution even though that law affects only members of that race. (see Applicant A per McHugh J at 258-9)." 19 The Tribunal then stated it was guided by the following paragraph of the decision of the Full Federal Court in Nagaratnam v Minister for Immigration & Multicultural Affairs (1999) 84 FCR 569 ("Nagaratnam"): "When, in accordance with some law or government policy, persons are selected for detention upon a ground which equates to one of the Convention reasons, the act of detaining such persons may or may not amount to persecution for a Convention reason, depending upon the circumstances in which the law or government policy is being implemented. It may be implemented, for instance, in circumstances of war, whether foreign or domestic. If so and the criterion of selection of persons for detention is seen as appropriate and adapted to the successful prosecution of that war, then the act of detention will not be persecution for a Convention reason. However, when those who detain such persons in accordance with such law or government policy are aware that the probable consequence of such detention will be the physical mistreatment of those detained, even though those detained will not be selected for such physical mistreatment by those who administer that physical mistreatment upon a ground which equates to one of the Convention reasons and even though those selecting the detainees are unwilling that such physical mistreatment should occur, then those who detain such persons will be taken to have caused such physical mistreatment. As such person have been selected for detention upon a ground which equates to one of the Convention reasons, the act of detaining such persons will amount to persecution for a Convention reason." [Emphasis added] 20 The Tribunal referred to independent evidence, comprised of press reports, United Nations High Commissioner for Refugees ("UNHCR") advice and Department of Foreign Affairs and Trade ("DFAT") cables, which was provided to the applicant at the hearing, and found: "Taken together, a consistent picture emerges, indicating that the Sri Lankan authorities do not target Tamils per se and that although abuses can occur, the Government is providing genuine and increasingly effective mechanisms for protection or redress against abuse by the security forces. On the basis of the evidence before it, the Tribunal does not accept that the probable consequence of brief detention for the checking of identity of Tamils will be the physical mistreatment of those detained or that [the] Sri Lankan government is "aware that the probable consequence of such detention will be the physical mistreatment of those detained" or that it regards such treatment as acceptable. […] The Tribunal acknowledges the uncertainty, tensions and fears engendered by the security situation in Sri Lanka but on the evidence before it the Tribunal is not satisfied that on that basis the Applicant has a well-founded fear of persecution for a Convention reason." (Emphasis added)

The application for judicial review 21 The application for judicial review raises two issues. One is whether the Tribunal failed to provide a statement in accordance with s 430 of the Migration Act 1958 (Cth) ("the Act") and thus failed to observe a procedure required by the Act: see s 476(1)(a). The other was whether the decision disclosed an error of law arising from the application of the judgment of the Full Court in Nagaratnam (supra). 22 This second matter arises from what the Tribunal said in the first passage from its decision quoted in par 20 above. The gravamen of the submission was that by referring to the "probable consequence of brief detention" the Tribunal was taking an approach other than the settled approach involving a consideration of whether there is a real chance of persecution. The expression "probable consequence" used by the Tribunal appears to have been drawn from the observations of the Full Court in Nagaratnam quoted in par 19 above. The Court in Nagaratnam was discussing the consideration by the Tribunal of material concerning existing circumstances in the country in question. That is, whether existing practices of detention could result in persecution for a Convention reason when there was not a direct link between the ethnicity or religion of the class of people who were being mistreated but an indirect link arising from the detention of members of that class. The particular facts in Nagaratnam were that the applicant had, in the past, been detained and had been beaten and tortured in detention. The Tribunal had failed to address the possible link between the reason for detention and the subsequent mistreatment visited upon the applicant. 23 It is true that in the passage quoted in par 20 above the Tribunal appears to be speaking of the "probable consequences" of future events and does not restrict its use of this formulation to what is presently known about what occurs in Sri Lanka. However, in my opinion, the Tribunal plainly had in mind what was presently occurring and was rolling up in the one paragraph its consideration of existing circumstances and the possibility of the applicant being subjected to harm were she to return to Sri Lanka. 24 Elsewhere in its decision the Tribunal speaks of a "real chance". Before it commenced to consider the country information generally the Tribunal said: "Apart from the Applicant's specific circumstances, for the reasons which follow the Tribunal is also not satisfied that the general circumstances prevailing in Sri Lanka give rise to a real chance that the applicant will again be detained or will be mistreated." (Emphasis added) It was after these observations that the Tribunal set out, at length, country information concerning the experiences of Tamils in Sri Lanka both historically and in the recent past. Having set out that material and having made the observations quoted in par 20 above, the Tribunal said: "The Tribunal acknowledges the uncertainty, tensions and fears engendered by the security situation in Sri Lanka but on the evidence before it the Tribunal is not satisfied that on that basis the Applicant has a well founded fear of persecution for a Convention reason. Having regard to all the evidence before it and the particular circumstances of the Applicant the Tribunal is satisfied that the impact on the Applicant of security operations and measures in Colombo does not amount to persecution for a Convention reason. Given the context in which such security measures are taking place and the policy and practice of the Sri Lankan Government directed against excess and abuses, the Tribunal does not accept that if the Applicant returns to Sri Lanka the activities of the security forces in Colombo would give rise to a real chance of persecution of her for a Convention reason." 25 I am satisfied that the Tribunal was, in substance, applying the correct test. While there is not an altogether clear distinction drawn by the Tribunal between recent and historical events and what might occur to the applicant on her return, the Tribunal nonetheless appears to have looked at recent and historical events, drawn conclusions about existing risks to Tamils of being mistreated in a way that might constitute persecution and then addressed whether there was a real chance of the applicant being persecuted were she to return and thus whether a well founded fear existed. This ground of review is not made out. 26 The other ground of review concerns the adequacy of the Tribunal's reasons. The basis on which a decision might be impugned because the reasons were inadequate has recently been considered by a five-member Full Court in Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845. Indeed judgment in this matter has been delayed, with the consent of the parties, until judgment was given by that Full Court and the parties have recently made supplementary written submissions concerning this ground. 27 The applicant submitted that the Tribunal, in its reasons, started, relevantly, by finding that it was not satisfied there was a real chance the applicant would again be detained or mistreated. It later said that abuses can occur and security operations may "impact" on the applicant but found that the "impact" would not amount to Convention related persecution. The Tribunal did not explain, so it was contended, whether this was because it would not be for a Convention reason or because it would not be serious enough to constitute persecution. The Tribunal did not explain what this "impact" might be or how it is to be read with the earlier finding that it was not satisfied there was a real chance the applicant would be again detained or mistreated. 28 Counsel for the applicant pointed out that these findings were made by the Tribunal in the context of it having quoted from a March 1999 DFAT country information report which stated that Tamils are stopped at checkpoints in Colombo. If an identity card reveals they were born in the north they will be detained unless they can provide a satisfactory explanation of their presence in Colombo. According to the same document around forty percent of detainees under the emergency regulations and related legislation complain of or shows signs of torture. The Tribunal appears to have accepted this material. However it did not explain, it was submitted, why the material did not satisfy it that the applicant's fear of persecution was well founded. 29 In addition, it was submitted, the reasoning of the Tribunal was so ambiguous and imprecise that it was not possible to tell that the Tribunal's process of reasoning was leading to the conclusion that the applicant did not have a well founded fear of persecution in Colombo. The following passage was cited by counsel for the applicant as illustrating this point: "Given the context in which … security measures are taking place and the policy and practice of the Sri Lankan Government directed against excess and abuses, the Tribunal does not accept that if the Applicant returns to Sri Lanka the activities of the security forces in Colombo would give rise to a real chance of persecution of her for a Convention reason." 30 It was submitted that it is impossible to tell what he Tribunal had in mind. It did not reveal whether, for example, the Tribunal had concluded what was happening was appropriate and adapted to achieving a legitimate object of the government, the policy and practices of the government had made the risk of serious harm remote or any harm would not be "persecution" or would not be "Convention related". 31 The respondent submitted that the basis upon which the Tribunal made its finding in relation to the applicant's chance of (future) persecution are clearly set out in its reasons for decision. It has not been demonstrated that the Tribunal failed to give effect to the obligation imposed by s 430. 32 In par 24 above, a passage from the reasons of the Tribunal is set out which commences with the expression "Having regard to all the evidence before it and the particular circumstances of the Applicant …". As noted in par 24, this passage in the Tribunal's reasons follows a section in which the Tribunal set out, at length, country information concerning the experiences of Tamils in Sri Lanka both historically and in the recent past. The quoted passage was preceded in the Tribunal's reasons by the following: "Taken together, a consistent picture emerges, indicating that the Sri Lankan authorities do not target Tamils per se and that although abuses can occur, the Government is providing genuine and increasingly effective mechanisms for protection or redress against abuse by the security forces. On the basis of the evidence before it, the Tribunal does not accept that the probable consequence of brief detention for checking of identity of Tamils will be the physical this treatment of those detained or that [the] Sri Lankan government is "aware that the probable consequence of such detention will be the physical mistreatment of those detained" or that it regards such treatment as acceptable." 33 The Tribunal had earlier quoted a passage from the decision of this Court in Nagaratnam (concerning the detention of individuals for legitimate reasons which, absent harm, would not be persecution even if selection for detention was by reason of a Convention characteristic) and discussed why Tamils are detained. The substance of what the Tribunal was saying, which is sufficiently revealed, in my opinion, on a fair reading of its reasons as a whole, is that while there was a prospect the applicant might be detained because she is a Tamil, were that to occur, the detention would be brief with no real prospect of physical mistreatment. It was also saying that the mere detention of the applicant (even if only because she was a Tamil) would not be persecution given the unlikelihood of the applicant suffering harm. 34 I am satisfied that the Tribunal gave effect to the obligation imposed by s 430. Accordingly, the application for judicial review is dismissed and the applicant is ordered to pay the respondent's costs.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore .

Associate: Dated: 2 August 2000 Counsel for the applicant: Mr C Colborne

Solicitor for the applicant: Somers & Sivalogan Solicitors

Solicitor for the respondent: Australian Government Solicitor