Federal Court of Australia|1994-05-20|Before: Davies J, Mr P, And J, Heerey J

Velauther Selvadurai v the Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105 (20 May 1994)

VELAUTHER SELVADURAI V THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS AND J.

Administrative Law - judicial review of Refugee Review Tribunal - application for a stay of deportation proceedings - whether Sri Lankan Tamil a refugee - entry by student temporary entry permit - fear of persecution from Tamil Tigers and government - whether well founded fear of persecution from Tamil Tigers on basis of desertion - whether well founded fear of persecution from government arising from Tamil Tiger involvement - requirement of systematic harassment - persecution in certain parts of country - 20 month delay in application for refugee status

Argit Singh Randhawa v Minister for Immigration Local Government and Ethnic Affairs (unreported, Federal Court, Davies J, 25 November 1993)

Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379

Solicitor for the first respondent: Australian Government Solicitor

The Notice of Motioni dated 18 April 1994 for a stay will be dismissed with costs.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

HEEREY J The applicant has brought an application under the Administrative Decisions (Judicial Review) Act 1977 to review a decision of the Refugee Review Tribunal that the applicant is not a refugee. Pending the hearing of that application the applicant by motion on notice seeks a stay of any proceedings to deport him. The application for a stay was opposed by counsel for the Minister on the ground that the applicant's material did not disclose a serious issue to be tried. The Applicant in Australia

2. The applicant is a Sri Lankan citizen of Tamil ethnicity. He is aged 55. He arrived in Australia on 15 March 1990 holding a student temporary entry permit valid until 31 December 1991. The purpose of his visit was to join his wife who had arrived in Australia in October 1989 to commence studies for a Master's Degree at the University of Queensland. The applicant brought the couple's five year old daughter with him.

3. In December 1991, shortly prior to the expiration of his temporary entry permit, the applicant lodged an application for refugee status. The application included his wife and daughter. On 11 May 1992 the Department advised the applicant that his application had been refused. He sought a review by the Refugee Status Review Committee. The Committee not having made a decision in his case prior to the establishment of the Refugee Review Tribunal, his application fell to be considered by the latter body.

4. A hearing before the Tribunal, constituted by Ms June Good, was held in October 1993. The applicant was legally represented. On 22 March 1994 the Tribunal affirmed the Departmental decision. The case presented by the applicant was summarised by the Tribunal as follows:

"The applicant claims refugee status on the basis of his

membership of the minority Tamil ethnic group which he

states resulted in his being deprived of work and education

opportunities. He also claims that he will suffer

persecution from the security forces if he returns to

Colombo and from the Liberation Tamil Tigers Eellam ('LTTE')

should he return to Jaffna.

In his application for refugee status and subsequent written

submissions forwarded to the Department, the application

makes a number of claims in support of his application. He

states that in July 1983 his house in Jaffna was attacked by

the security forces following an incident in which 13

government security members were killed nearby. At the

time, he was living and working in Colombo and shortly after

that incident, Sinhala thugs entered his house in Colombo,

looted it, and took all his belongings.

In April his house in Jaffna was badly damaged by government

forces and was again damaged by shelling from the Indian

Peace Keeping Forces ('IPKF') in October 1987. Another

house in Kanthermadam, Jaffna, was also raided by the IPKF

on several occasions. His wife and daughter were forced to

live elsewhere temporarily after these incidents.

In December 1987 he claims that he was compelled to join the

LTTE and was forced to contribute funds and to collect funds

for the organisation. If he had refused to do so, he would

have been killed. He claims to have deserted the LTTE when

he came to Australia and believes that he is wanted by them

and that they will kill him if he returns to Sri Lanka.

At the hearing, the applicant was questioned concerning his

fear of persecution should he now return to Sri Lanka. He

stated that he had been questioned by the security forces a

number of times, but was never taken into custody. The

applicant told the Tribunal that his wife worked in a

government position in Jaffna and that she had been unable

to transfer her position to Colombo. Hence they have been

forced to maintain two households for most of the time since

their marriage in 1981. The applicant appears to have been

continuously employed as an accounts clerk or audit officer

with different companies in the Colombo area from late 1961

until he left for Australia in March 1990.

After his house in Colombo was looted in 1983 he spent about

ten days in a refugee camp and then travelled to Jaffna to

be with his family for three to four months, before

returning to his job in Colombo. The applicant stated that

he usually visited his family in Jaffna about twice a month

for varying periods of time. During this time the IPKF and

LTTE were fighting and he had to keep making repairs to his

house in Jaffna, which continued to suffer damage as a

result of the hostilities.

In relation to his LTTE involvement the applicant claims

that militants visited his house in Jaffna and asked for

financial support and he was given a list of Tamil people

from whom he was supposed to obtain money. He was forced to

distribute literature on behalf of the LTTE, and he

collected funds from various people until he came to

Australia.

The applicant claims that the government would still be

interested in him because of this involvement. In his view,

the security forces were interested in those who merely

supported the LTTE as well as those who were involved in

terrorist type activities. He feared that if he were to

return to Colombo, he would be arrested and interrogated,

and that such action sometimes led to loss of life. The

applicant referred to the fact that since January 1993 all

people entering Colombo from overseas and other parts of the

country were required to report to a police station. This

requirement would expose him to further scrutiny and he felt

that while the security forces had previously been unable to

prove his involvement with the LTTE, since the IPKF left Sri

Lanka in March 1990, many informers from the north had gone

to Colombo and they would now inform on him.

In addition, as already stated, the applicant feared adverse

attention from the LTTE if he were now to return to Jaffna,

although he could not provide any evidence to support this.

The applicant has a sister and brother who still reside in

Jaffna. Another sister was killed as a result of shelling

in June 1990. He receives letters from his relatives there

and they confirm that immense suffering exists because of

the war situation. The area has been virtually cut off from

the south. There is constant aerial bombardment and a

severe lack of food, medicine and necessary facilities.

Both of his siblings have jobs and families and claim to

have problems with the LTTE."

5. The Tribunal did not accept the applicant's claim to be deprived of common rights such as work and education. The Tribunal pointed out that he completed secondary education and also passed the intermediate examination of the Chartered Institute of Management Accountants (UK). He was employed with three companies in Colombo as an Accounts and Audit Officer from 1961 until 1990. The Tribunal accepted that the applicant and his family had suffered loss and damage as a result of the riots and ethnic disturbances which occurred in Sri Lanka in the last decade and that his relatives continue to suffer many hardships owing to the ongoing hostilities in the Jaffna area. (I was told Jaffna is about 250 miles from Colombo.) The Tribunal then considered the applicant's case in relation to the LTTE as follows:

"I also consider it plausible that the applicant, along with

many other Tamils, was forced to join the LTTE in the late

1980's. However, given the fact that his involvement was

limited to contributing funds and collecting money from

others, I believe that his claim that he is regarded as a

deserter from the LTTE, and that 'I will be killed if I

return to Sri Lanka' is exaggerated and such fear is not

well founded. There is no compulsion for Tamils returning

to Sri Lanka to return to LTTE controlled areas. Indeed,

the applicant has mainly lived and worked in Colombo for

almost 30 years prior to his departure for Australia.

Moreover, given that the applicant would not be forced to

return to Jaffna, information provided by the Australian

High Commission in Colombo in May 1993 indicates that it is

very unlikely that the LTTE would expend important resources

on the elimination of civilian individuals living in Colombo

from whom they have already taken property and money."

As to the applicant's fears of government action in Colombo the Tribunal said:

"... the applicant also claims that he is wanted by the

government security forces as a result of his LTTE

activities and that a return to Colombo would place him at

risk from this body. I find this claim to be overstated.

On his own admission he was never arrested or mistreated by

the authorities despite the face that he apparently

travelled to and from Jaffna about twice a month, and was

involved in collecting funds for the LTTE. His claim that,

as a result of 'information provided by informers', the

security forces would now be able to prove his involvement

with the LTTE, is not very convincing. Taking into account

all the evidence and considering the fact that the applicant

did not lodge his application for refugee status until some

21 months after he had arrived in Australia, which was just

prior to the expiration of his visa, I do not accept that

the applicant had a well-founded fear of persecution for a

Convention based reasons at the time he left Sri Lanka."

6. The Tribunal then turned to consider whether events that have occurred since the applicant left Sri Lanka might make any fear of persecution well founded. The Tribunal referred to the assassination of the Sri Lankan President and Opposition Leader in April and May 1993, the LTTE attack on government forces at Poonery and evidence of mass arrests of Tamils in November 1993. Reference was made to some newspaper articles, Amnesty International reports and a UNHCR Geneva office report as well as a report from Asia Watch. The Tribunal concluded:

"Despite the apparent conflict of opinions it is possible to

draw some conclusions. The more wide-sweeping assessments of

Amnesty and Asia Watch followed a period of mass arrests

after the assassination. Even so Amnesty does not rule out

all repatriation of Tamils but says that many could not

return to any area. The Asia Watch report is primarily

directed to the repatriation of Tamils to the north and

north-east. Its comments about the possibility of return to

Colombo are in the context of those displaced from elsewhere

in Sri Lanka. The UNHCR view is that there are threshold

prerequisites for return to the south, namely: 'the presence

of close relatives and/or the duration of previous residence

and/or a past employment in these areas'.

The Tribunal does not accept the broad assessments that all

repatriation of Tamils should be halted. The UNHCR view, which is

consistent with the reservations contained in the others,

is, in the Tribunal's view, a preferable and reasonable

assessment of the current possibilities for the safe return

of most Tamils to Sri Lanka. In other words, subject to the

personal characteristics and history of the individual

involved, it is not unreasonable for some Tamils who meet

the threshold prerequisites outlined by the UNHCR to

re-establish themselves in the south.

As already mentioned, the applicant has had a history of

around thirty years of employment in Colombo, and whilst he

often returned to Jaffna to visit his family, it is clear

that he mainly resided in Colombo during that period. The

applicant acknowledges that he was never detained by the

authorities and, in view of his age and long history of

previous employment and residence in Colombo, the Tribunal

believes that there is little likelihood of the applicant

being persecuted on his return to Sri Lanka.

It may well be that the applicant will be questioned or even

detained by the security forces at some stage if he returns

to Colombo. However, for the reasons already stated, it is

very unlikely that he will suffer from any form of sustained

adverse attention which would go beyond questioning and

perhaps the payment of a bribe. Whilst such an incident

would undoubtedly be unpleasant and regrettable, it would

not, in the Tribunal's view, constitute the sort of

sustained and serious infringement of human rights which

would constitute 'persecution' under the United Nations

Convention definition.

For all the above reasons therefore, the Tribunal finds that

the applicant meets the prerequisites set out by the UNHCR

for return to Colombo. This fact combined with the previous

findings of the Tribunal that he did not have a well-founded

fear of persecution at the time he left Sri Lanka and that

situation since then has not changed in such a way that

would give an objective basis to his fears, leads the

Tribunal to find that the applicant's fear of persecution if

he were to return now is not well-founded."

7. Counsel for the applicant argued that a triable case for review was made out on five grounds.

(i) It was said there was no material before the Tribunal that supported the conclusion that the applicant's claim that he was regarded as a deserter by the LTTE was exaggerated. In the initiating application this matter appears in par. 3(a)(iii) as an allegation of breach of the rules of natural justice. Counsel agreed it was more appropriately considered as a "no evidence" complaint under s.5(1)(h) of the AD(JR) Act. In any event, I do not think there is an arguable case on this ground. As a decider of factual issues, the Tribunal had to assess this particular claim advanced in support of the applicant's case. In substance the Tribunal came to the conclusion that the claim was exaggerated. The onus was on the applicant. A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out.

(ii) It was said that there was no material made available to the applicant to support the Tribunal's conclusion that the LTTE would not expend resources on the elimination of civilian individuals living in Colombo from whom they had already taken property and money. It was said that the applicant was not given opportunity to comment on the information from the Australian High Commission referred to in the Tribunal's reasons.

8. I do not regard this matter as of any significance. It is clear that the case presented by the applicant to the Tribunal was that he feared persecution from the LTTE if he went back to Jaffna and from the government if he went back to Colombo. He did not seek to make out a case that the LTTE would threaten him in Colombo. Indeed in his affidavit in support of the application for review to this court, the applicant said:

"In the event that I am forced to return to Sri Lanka I

feel I will suffer at the hands of either or both the

security forces and the LTTE. I do not believe that I

can return to Colombo safely. I believe that I would

be subject to attention from the security forces who

may well have been advised of my involvement with the

LTTE. In the event that I was to return to Jaffna I

believe I would be at risk from the LTTE who would see

as a deserter from their cause."

(iii) The applicant argued that there was no material from which the Tribunal could conclude that the applicant would not be placed at risk on a return to Colombo by government security forces as a result of his LTTE involvement or that such a claim by the applicant was overstated. Again I think this was simply a decision of fact on evidence which was open to the Tribunal on the evidence. I did in the course of the argument consider whether the Tribunal might have applied a criterion for the establishment of "persecution" not justified by law. I refer to the passage where the Tribunal says

"It may well be that the applicant will be questioned

or even detained by the security forces at some stage

if he returns to Colombo. However, for the reasons

already stated, it is very unlikely that he will suffer

from any form of sustained adverse attention which

would go beyond questioning and perhaps the payment of

a bribe. Whilst such an incident would undoubtedly be

unpleasant and regrettable, it would not, in the

Tribunal's view, constitute the sort of sustained and

serious infringement of human rights which would

constitute 'persecution' under the United Nations

Convention definition."

9. Contrary to what was perhaps my first impression, I do not think the Tribunal was constructing a false legal criterion that "persecution" had to be "sustained". The Tribunal had already referred at an earlier stage of its reasons to the leading High Court authority on the subject, Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379, and in particular the judgment of McHugh J at 429-430 where his Honour said (citations omitted):

"(An applicant for refugee status) may be 'persecuted'

because he or she is a member of a group which is the

subject of systematic harassment ... Nor is it a

necessary element of 'persecution' that the individual

should be the victim of a series of acts. A single act

of oppression may suffice. As long as the person is

threatened with harm and that harm can be seen as part

of the course of systematic conduct directed for a

Conventions reason against that person as an individual

or as a member of a class, he or she is 'being

persecuted' for the purposes of the Convention."

10. In the passage under consideration the Tribunal was merely considering the possibility of an incident of relatively minor adverse attention by government authorities and saying that such an event would not amount to "persecution", even though (theoretically) repetition might.

(iv) It was argued that the Tribunal did not take into account that, although the applicant might be able to live in Colombo and obtain work there, his wife had resided in Jaffna and worked there and would be unable to maintain her employment or return to Jaffna.

11. This argument is really bound up with the point made by the Tribunal that there was no compulsion for the applicant to return to LTTE controlled areas. Indeed that the applicant had mainly lived and worked in Colombo for almost 30 years prior to his departure for Australia. A similar issue arose in Argit Singh Randhawa v Minister for Immigration Local Government and Ethnic Affairs (unreported 25 November 1993) where Davies J upheld the lawfulness of a decision that a Sikh who might have a fear of persecution in the Punjab would nevertheless face no real chance of persecution if he went to live in another part of India and was consequently not a refugee. Once it is accepted that there is no case for saying that if the applicant returned to Sri Lanka and lived in Colombo he would suffer persecution in Convention terms, the fact that another member of his family might for other reasons prefer to live in another part of the country where persecution might take place, cannot in law dictate a conclusion that the applicant is a refugee.

(v) The applicant complained of the Tribunal's taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant's alleged fear of persecution. It is a rational consideration open on the material. Natural justice does not require every possible adverse inference from uncontested facts to be put to an applicant. A decision-maker does not have to provide an applicant with a draft of the proposed reasons for decision.

12. The argument before me was put concisely and effectively by competent and experienced counsel on both sides. Although the requirement the applicant had to satisfy was only the raising of a triable issue, there was, I suspect, little more that could in reality be said on a final hearing. The points relied on were short ones covered by well established principles of administrative law. I am satisfied that no triable issue arises. The Tribunal applied the correct law, reviewed the evidence carefully and reached a conclusion on the facts which was plainly open to it. The motion for a stay will be dismissed with costs.

Decisions (Judicial Review) Act 1977

Velauther Selvadurai v the Minister of Immigration and Ethnic Affairs and J Good

At a glance

Court

Decision date

Before

Source

Judgment (35 paragraphs)

Velauther Selvadurai v the Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105 (20 May 1994)

Parties

Legislation Cited (1)

Cases Cited (1)