UDENI WELIVITA v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

The expression "Refugees Convention" is defined in cl 866.111 to mean "the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees." In the case of a person who claims to be a member of the same family unit as an applicant for a protection visa, the comparable criterion is that the Minister is satisfied that the person is a member of the same family unit as a person who has been granted a Protection (Residence) Visa. I need not say anything further of the special position of the applicant's de facto spouse in the present case. Australia is a party to the Refugees Convention and the Refugees Protocol and therefore has protection obligations to persons who are refugees as defined in those instruments. Article 1A (2) of the Convention, as amended by the Protocol, provides that a refugee is 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 claims that he has a well-founded fear of being persecuted for reasons of political opinion; that he is outside the country of his nationality, namely, Sri Lanka; and, that owing to such fear, he is unwilling to avail himself of the protection of that country. Sub-section 476 (1) of the Act provides that, subject to sub-s 476 (2), application made be made for a review of a decision of the RRT on any one or more of the grounds set out in the sub-section. The applicant relies only on the ground referred to in para 476 (1) (e), namely: "that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision".

OUTLINE OF FACTS In order to understand the grounds of the present application, one must have some appreciation of the background facts. I find it convenient to set these out in chronological order. The following factual account is based on the RRT's Reasons for Decision which, in turn, were based on that given by the applicant. As noted earlier, on 16 March 1970 the applicant was born. A significance of this fact is that he was a fairly young man at the time of the events now to be described.

In 1986, the applicant received tutoring in maths and science for his "O" level secondary examinations from a friend of his father. The tutor was an active member of the Janatha Vikmuthi Peramuna ("JVP" - the People's Liberation Front). (I refer later to the role of the JVP in Sri Lanka at the relevant time.) The tutor often spoke about his political beliefs to the applicant. In February 1987, the applicant's father, a communist, was taken from his house by five men whom the family assumed to be plain-clothes policemen, for questioning. As well, they searched the house and confiscated his books on communism. Some days later, the police advised that the father was in hospital. The family found him there covered with scratches and bruises. He died the following day. The applicant believes that his father was murdered by "the authorities". Following February 1987, the applicant resolved to work for the JVP and did so with the encouragement of his former tutor. He attended an intensive series of classes conducted by the JVP over a period of a week. In mid 1987, the applicant became a full member of the JVP. Following mid 1987 the applicant started a branch of the Socialist Student Movement ("SSM") at his school. The SSM was part of the JVP. The applicant helped organise two meetings of about 200 school and university students. The SSM branch at his school had about 150 members and he arranged for members to attend JVP classes like those which he had attended. The applicant was involved in the organisation of JVP rallies protesting against the Peace Accord with India. He put up many JVP posters criticising Indian intervention in northern Sri Lanka. He was involved in regular meetings with other JVP members about every two weeks. In May 1998, provincial government elections were held in Sri Lanka. During the two weeks leading up them, violent demonstrations and strikes occurred. Soldiers from a nearby army camp rounded up and questioned about 25 youths from the applicant's village. The applicant was among them. He was questioned for about one hour, particularly about his former tutor. He told the soldiers that the tutor had been just a family friend who had been tutoring himself and his brother. The soldiers knocked him about and said that they did not believe him. The same evening he was taken to a nearby college which had been converted into an army camp. He was held there with 50 other youths for ten days. Nothing happened in the first six days but on the seventh day he was questioned by two uniformed men who told him that he was a JVP suspect. They also referred to the activities of the applicant's former tutor. In mid 1988, the applicant's former tutor disappeared and his body was soon afterwards discovered with the bodies of five other persons. The applicant says that "everyone knew" that he had been killed by government agents because of his JVP activity. The applicant was elected to the JVP District Committee in place of his former tutor. In December 1988, the presidential elections were held. After the elections the applicant went to live in Colombo with an uncle, who had been active in the elections on behalf of the opposition Sri Lanka Freedom Party ("SLFP"). The uncle had been much criticised for opposing the Government and had been sacked from his position as manager of a Government firm. In February 1989, general elections were held. The uncle campaigned in connection with them. He received two death threats before being shot at while campaigning. His driver and bodyguard were killed. The applicant did not tell his uncle about his JVP involvement. Towards the end of 1989, the applicant obtained a job with Air Lanka at Colombo Airport, checking the arrival and departure of cargo. In 1990, the applicant met his present de facto spouse, who was at the time employed by Air Lanka as a traffic agent. The applicant told her about his JVP beliefs and activities but she did not wish to become involved or for the applicant to remain involved because of the danger.

In mid 1990, the applicant began the renting of a room near the airport, where he sometimes stayed. In late 1990 to early 1991, the applicant came into contact with two JVP members who organised underground JVP activities in the airport area. The applicant helped to hand out JVP leaflets at a large concert. Importantly, the two JVP members asked the applicant to help JVP members leave Sri Lanka through the airport. The applicant, and, after some hesitation, his girlfriend, agreed to assist. She knew two immigration officers at the airport who, she understood, had been involved for some time in accepting payments to assist people to leave the country illegally. She approached these two men who agreed to assist people to leave Sri Lanka for a payment of 15,000 rupees on each occasion. From March 1991 to December 1992, the applicant and his girlfriend assisted about 40 JVP members to leave Sri Lanka. The modus operandi of those concerned can be understood from the following account recorded in the RRT's Reasons for Decision: "The Applicant stated that when it was planned for JVP members to depart, he would be contacted by the JVP. He would then arrange that they would check in with his girlfriend who would clear them through to immigration and issue their boarding passes. The two immigration officers would then clear them through immigration." In April 1992, the applicant had a trip to the Netherlands as a visitor. In the same month, April 1992, one of two JVP members scheduled to depart did not turn up. The applicant was worried that the man might have been caught by the authorities and forced to provide information about his departure arrangements, but in fact nothing happened. On 31 December 1992, again only one of the two JVP members who were to depart turned up at the airport. That one left as arranged. A couple of days later the applicant was informed by his JVP contact that the other man had disappeared on the day when he was due to leave, that he had been killed, and that his body had been discovered. The applicant was concerned because he believed that the man would have had his passport and ticket on him. (The applicant has said, "we could only conclude" that the deceased JVP member implicated him and his girlfriend.) The applicant feared that his own involvement would be discovered, and was particularly concerned because of his past political activity. He decided to leave Sri Lanka as soon as possible and took steps to obtain a visitor's visa for Australia. On 22 January 1993, all airport staff who had been on duty in the passenger terminal on 31 December 1992 were questioned by the police (the Criminal Investigation Division "CID"). The applicant's girlfriend telephoned him to say that the men who had questioned her knew from the computer record that the JVP man who had left on 31 December had received his boarding pass from her, but that she had told the police that there had been nothing distinctive about the man and that she did not remember him. When she was questioned, the applicant's name was mentioned. The applicant immediately applied for, and was granted, 14 days' leave, and went home and told his uncle about what had happened. The uncle knew the head of the CID who lived close by and whom he had met socially. The uncle spoke to the CID chief and ascertained from him that the CID was looking for the applicant. The following day, the applicant went to stay at the house of the CID chief until he could leave the country. Two days later, the CID questioned the applicant's mother and uncle about his whereabouts, but neither provided any information. In the meanwhile, the applicant's girlfriend had also obtained leave from work commencing on 15 February, and secured visas as well as airline tickets for both of them. On 26 February they went to the airport and were given their boarding passes by a work friend of the girlfriend. So far as was known, the applicant and his girlfriend were departing for Australia on a holiday. The CID chief had said that he would be at the airport but the applicant did not see him there. The applicant's de facto spouse subsequently heard through her family that the CID had been questioning her work colleagues about her. The applicant asserts that if he or his de facto spouse should return to Sri Lanka, he or she would be apprehended on arrival and charged with a criminal offence or criminal offences which would result in imprisonment for years or even execution. The applicant's de facto spouse has said that it is not simply a matter of being prosecuted for being accomplices in facilitating illegal departures from Sri Lanka, but that the applicant and she would be regarded as political enemies and, as a result, would receive extrajudicial punishments which could include indefinite detention, torture and execution, which would be sanctioned at "the highest levels of government". GROUNDS OF APPLICATION IN THIS CASE The grounds set out in the amended application filed on 18 October 1996 are as follows: "1. The second respondent erred in law in finding that `the character of the Applicant's admitted offence is [not] such as to make any punishment for it a penalty differentially inflicted by reason of his political opinion.' 2. The second respondent erred in law, being an error in the application of the law to the facts, and an erroneous interpretation of the applicable law, in failing to find that the offences committed by the applicant were political offences. 3. The second respondent erred in law in failing to find that any judicial or extra judicial punishment experienced by the applicant because he had committed political crimes would be for reason of his political opinion. 4. The second respondent erred in law, being an error in the interpretation of the applicable law, in implicitly finding (a) that the willingness of the government of Sri Lanka 'to take action against members of the security forces who disregard and [sic] its instructions to respect human rights and avoid abuses' precludes a well founded fear of persecution, and (b) that to constitute persecution in terms of the Convention Relating to the Status of Refugees, 1951, the agent of persecution has to be the government. 5. The second respondent erred in failing to find that the applicant faced a real chance of persecution upon return to Sri Lanka by reason of his political opinion."

GOVERNMENTAL AND POLITICAL SITUATION IN SRI LANKA Before addressing the individual grounds of review, I will note aspects of the governmental and political situation in Sri Lanka at relevant times. The following account is based on the RRT's Reasons for Decision. The two major political parties which have dominated coalitions forming government since Sri Lanka's independence in 1948 have been the United National Party ("UNP") and the Sri Lanka Freedom Party ("SLFP"). The UNP governed Sri Lanka from 1948 to 1956, from 1965 to 1970 and from 1977 until 1994. The SLFP has led governments from 1956 to 1965, from 1970 to 1977 and from 1994 to date. The SLFP won the August 1994 parliamentary elections and forms the present government of Sri Lanka as the dominant partner in the People's Alliance, with support from several Tamil parties. The UNP is now in opposition. The parliamentary elections were followed by a landslide victory for the SLFP in the November 1994 presidential elections. Thus, the party supported by the applicant's uncle has come to power since the applicant and his girlfriend came to Australia from Sri Lanka. Importantly, a feature of the new SLFP Government has been a commitment to improve human rights. The state of emergency, which provided the basis for the emergency powers of the army and of the police, has been lifted in all parts of the country except the main areas of conflict in the north and the east. The present Government has also announced that commissions will investigate the disappearance of people who fell victim to death squads over the past decade. The Australian High Commission in Colombo has commented that the new Government's commitment to human rights is genuine and that many in the present Government had been advocates for human rights during the rule of the UNP. In May 1995, the Australian High Commission in Colombo reported that most observers believed that the Government had done a commendable job in improving Sri Lanka's human rights record, but that there remained more to be done to complete the task. The period from early 1988 to March 1990 saw intensive violence by the extremist JVP, particularly in the Sinhalese south and the west of the country. This activity was directed, inter alia, towards wrecking the elections held in December 1988 and February 1989. The violence was directed against all of the JVP's political opponents, including politicians and activists of both governing and opposition parties, the security forces and public servants. The JVP's violence led to a vigorous and bloody reaction by the security forces. The RRT referred to "independent material" which, according to its Reasons for Decision, documented as a fact that during the period from early 1988 until March 1990 the JVP was involved in a violent insurrection which included "the targeting of political opponents and rivals, attacks on security forces and infrastructure and the murder of the families of members of the security forces" (p 17). The applicant claimed that the murders of members of the families of the security forces had been "set up" by the former UNP Government which wanted to make the security forces angry with the JVP. However, the RRT accepted evidence that the JVP was responsible. The RRT considered that since 1990 there had been a substantial change since 1990 in the threat posed by the JVP and in the Sri Lankan Government's concern with suspected members and sympathisers. In particular, the RRT concluded: "The evidence indicates that by 1993 the JVP was no longer regarded as an effective threat to the authorities in Sri Lanka and that only those engaged in current illegal activity for the JVP remained of interest to the authorities." (Reasons for Decision, p 18)

Another conclusion of the RRT was this: "It seems clear that by 1993 only JVP members against whom there were outstanding criminal charges or who were regarded by the Sri Lankan Government as committed cadres involved in the JVP terror campaign of the 1980s continued to engage the attention of the former UNP government." (ibid)

Finally, the RRT emphasised the change of government in Sri Lanka in the April 1994 parliamentary elections, and the November 1994 presidential elections in the following terms: "The Tribunal attaches significance to the fact that the UNP government which prosecuted the fight against the JVP has been replaced by a new People's Alliance coalition government which has, in the judgment of the Australian High Commission in Colombo ... a genuine commitment to improved human rights and which has lifted the state of emergency in that part of the country previously troubled by the JVP insurgency." (Reasons for Decision, p 19)

The RRT did not accept the applicant's submission that the JVP had not been a violent group or that nothing had, in reality, changed with the 1994 change in government. The RRT concluded as follows: "The fact is that the JVP is not now a proscribed organisation in Sri Lanka and is accepted by the present Sri Lankan government as a minor political entity, which participated in both the parliamentary and presidential elections earlier [in 1994] ... . It is clear from the evidence provided by DFAT [the Department of Foreign Affairs and Trade] that the situation which prevailed in the late 1980s, of an intensive and violent terror campaign by the JVP, no longer exists. The JVP insurrection was crushed by early 1990 and it has not since represented a significant terrorist threat. ..." (Reasons for Decision, p 20) REASONING The RRT's Reasons for Decision address, in turn, the applicant's father's death, the detention and questioning of the applicant in 1988, the applicant's uncle's "profile", and, finally, the applicant's involvement in the illegal departures of members of the JVP from Colombo Airport. It is this last matter on which the grounds of the application concentrate. The RRT found certain aspects of the applicant's account in this respect difficult to accept, in particular, the role of the head of the CID. But even accepting his account at face value, the RRT reached conclusions of law and fact which can be summarised as follows: (a) the possibility that the applicant and his de facto spouse might receive more severe legal penalties because they were helping members of a wanted terrorist group, as distinct from other persons, to leave Sri Lanka illegally, is not itself necessarily persecution (Reasons for Decision, p 27.1); (b) the RRT did not accept that the character of the applicant's admitted offence was such as to make any penalty imposed for it a penalty differentially inflicted by reason of his political opinion (Reasons for Decision, p 27.8); (c) in the present case, a legal penalty incurred by the applicant and his de facto spouse in relation to their assisting the illegal departure from Sri Lanka of wanted JVP members is not, in itself, persecution (Reasons for Decision, p 27.9); (d) there was no evidence before the RRT that the Sri Lankan government would impose or condone extrajudicial punishment of the applicant (Reasons for Decision, p 28.7); (e) the JVP and its members are not persecuted in Sri Lanka (Reasons for Decision, p 28.8); (f) the RRT did not accept that on return to Sri Lanka, the applicant faces a real chance of extrajudicial punishment amounting to persecution for a Convention reason (Reasons for Decision, p 28.9). Ground 1 "The second respondent erred in law in finding that `the character of the Applicant's admitted offence is [not] such as to make any punishment for it a penalty differentially inflicted by reason of his political opinion.'" The nature of the "admitted offence" under the law of Sri Lanka referred to is far from clear. Apparently the applicant communicated to his girlfriend information received from his JVP contact as to the identity of JVP members who wished to leave the country and she transmitted this information to two corrupt immigration officers and issued boarding passes. In any event, the RRT made the assumption in the applicant's favour that he had committed a criminal offence, albeit of some undefined kind. Apparently this would be an accessory offence, the principal offenders being the two immigration officers. Ground 1 seems to be that the RRT erred by failing: (i) to find that the purpose and effect of the applicant's offence, that is to say, assisting members of the JVP to leave Sri Lanka by their bribing immigration officers, would lead to the imposition of a more severe punishment than would be the case if he had acted identically in relation to other persons and without any political motivation; and (ii)to conclude that the imposition of the more severe punishment in these circumstances constitutes persecution "for reasons of ... political opinion". The applicant submits that his offence should be characterised as a "political offence". The submission assumes that if it should be, his fear is a fear of being persecuted "for reasons of ... political opinion" for the purpose of the Convention's definition of "refugee" noted earlier. The applicant has referred to cases concerned with the law relating to extradition and to the significance of "political offences" in that context. In my opinion little assistance is provided by those cases for the decision of the question whether a person is a refugee as defined in article 1A (2) of the Refugees Convention. It was necessary for the RRT to keep steadily in mind, as it did, that the question before it was whether the applicant has a well founded fear of being persecuted for reasons of political opinion. Clearly, the mere fact that a person will, upon returning to his or her country of nationality, be prosecuted and penalised for a criminal offence does not establish the existence of a well founded fear of being persecuted for reasons of political opinion. Contrary to the applicant's submission, the mere fact that the criminal offence was "politically motivated" makes no difference. With respect, it seems to me that the following paragraphs from the United Nations Handbook on Procedures and Criteria for Determining Refugee Status Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (Geneva, January 1992) are unexceptionable: "84.Where a person is subject to prosecution or punishment for a political offence, a distinction may have to be drawn according to whether the prosecution is for political opinion or for politically-motivated acts. If the prosecution pertains to a punishable act committed out of political motives, and if the anticipated punishment is in conformity with the general law of the country concerned, fear of such prosecution will not in itself make the applicant a refugee. 85.Whether a political offender can also be considered a refugee will depend upon various other factors. Prosecution for an offence may, depending upon the circumstances, be a pretext for punishing the offender for his political opinions or the expression thereof. Again, there may be reason to believe that a political offender would be exposed to excessive or arbitrary punishment for the alleged offence. Such excessive or arbitrary punishment will amount to persecution. 86.In determining whether a political offender can be considered a refugee, regard should also be had to the following elements: personality of the applicant, his political opinion, the motive behind the act, the nature of the act committed, the nature of the prosecution and its motives; finally, also, the nature of the law on which the prosecution is based. These elements may go to show that the person concerned has a fear of persecution and not merely a fear of prosecution and punishment - within the law - for an act committed by him."

The RRT considered with apparent thoroughness the evidence before it and the applicant's submissions to it relating to issues of the kinds referred to in these paragraphs and reached the conclusions referred to earlier. In my opinion, they reveal no error of law. In terms of my earlier analysis of Ground 1: (i) the RRT was not required to make a finding as to the matter referred to in para (i) because it was able to resolve the issue before it by making an assumption in the applicant's favour in that respect; (ii)the conclusion of law referred to in para (ii) proposed by the applicant is answered by the RRT's correct conclusion of law that the imposition of a more severe penalty because the persons assisted were members of a wanted terrorist group would not necessarily make a prosecution of the applicant by the authorities a persecution of him for reasons of political opinion. Ground 2 "The second respondent erred in law, being an error in the application of the law to the facts, and an erroneous interpretation of the applicable law, in failing to find that the offences committed by the applicant were political offences."

I repeat what I have said in relation to Ground 1 above. The RRT was not required to decide whether the supposed offences were properly characterised as "political offences". Moreover, if it had assigned that label to them, its doing so would not have resolved the question which it was required to decide, namely, a question referable to the definition of "refugee" in the Refuges Convention. Ground 3 "The second respondent erred in law in failing to find that any judicial or extra judicial punishment experienced by the applicant because he had committed political crimes would be for reason of his political opinion." What I have said in relation to Grounds 1 and 2 above suffices to deal with this submission.

Ground 4 "The second respondent erred in law, being an error in the interpretation of the applicable law, in implicitly finding (a) that the willingness of the government of Sri Lanka 'to take action against members of the security forces who disregard and [sic] its instructions to respect human rights and avoid abuses' precludes a well founded fear of persecution, and (b) that to constitute persecution in terms of the Convention Relating to the Status of Refugees, 1951, the agent of persecution has to be the government." Paragraphs (a) and (b) are interrelated. It must be remembered that it was part of the applicant's case before the RRT that he had a well grounded fear of persecution authorised or condoned by "the authorities" and by "the highest levels of government." In my view, there is no implicit finding in the RRT's Reasons for Decision that the willingness of the Sri Lankan Government to take action against members of the security forces who disregard its instructions to respect human rights and avoid abuses, in itself and without more, precludes the existence of a well founded fear of persecution. However, naturally and correctly, the RRT took that willingness into account as relevant to the case put by the applicant. Similarly, the RRT did not implicitly find that to constitute persecution in terms of the Refugees Convention, the agent of persecution must be the Government.

Ground 5 "The second respondent erred in failing to find that the applicant faced a real chance of persecution upon return to Sri Lanka by reason of his political opinion."

The applicant did not address any independent submission to this "ground". I am not called upon to deal with it independently. CONCLUSION The application will be dismissed with costs.

I certify that this and the preceding 24 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lindgren. Associate: Dated: 18 November 1996 Heard: 6 November 1996 Place: Sydney Decision: 18 November 1996 Appearances: Mr L Karp, solicitor, of McDonells, solicitors, appeared for the applicant. Mr P Roberts of counsel instructed by The Australian Government Solicitor appeared for the first respondent.