Welivita v Minister for Immigration & Ethnic Affairs, unreported, 18 November 1996, Lindgren J.

REASONS FOR JUDGMENT INTRODUCTION The applicant ("Mr Tharmalingam") applies for review of a decision of the Refugee Review Tribunal ("the RRT") dated 23 October 1997 affirming a decision of a delegate of the respondent ("the Delegate" and "the Minister" respectively) not to grant him a protection visa. Subsection 36 (2) of the Migration Act 1958 provides that a criterion for the grant of a protection visa is that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the "Refugees' Convention" as amended by the "Refugees' Protocol". These expressions are defined to mean, respectively, the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol Relating to the Status of Refugees done at New York on 31 January 1967. I will refer to them compendiously as "the Convention". In order for Australia to have protection obligations to Mr Tharmalingam, he must satisfy the definition of a refugee in Article 1A (2) of the Convention as a person who: "Owing to a 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." PROCEDURAL BACKGROUND Mr Tharmalingam arrived at Sydney Airport on 31 March 1997 on a flight which had left Colombo on 28 March. Since his arrival he has been in immigration detention at the Immigration Detention Centre, Villawood. In April 1997 Mr Tharmalingam lodged with the Department an application for a protection visa. This was supported by a written statement dated 18 April 1997 signed by him. He claims to be a Sri Lankan Tamil. He has said that he had no travel documents. On 30 July 1997, the Delegate advised Mr Tharmalingam that his application for the grant of a protection visa was refused as he did not satisfy the Convention definition of a refugee. On 31 August 1997, Mr Tharmalingam applied to the RRT for review of the Delegate's decision. There was a hearing before the RRT on 30 September 1997 and, as noted earlier, the RRT gave its decision the subject of the present application for review on 23 October 1997, affirming the Delegate's decision not to grant a protection visa. MR THARMALINGAM'S ACCOUNT OF THE BACKGROUND FACTS The facts as asserted by Mr Tharmalingam are, in outline, as follows: Mr Tharmalingam was born on 29 March 1961 in the Jaffna Peninsula region of Sri Lanka. He left school in 1981. In March 1983 he became employed in Colombo by the National Savings Bank ("the Bank"). In that year he was "severely affected" by ethnic riots and he returned home to Jaffna in about July or August. In early 1984, when he felt that it was "safe" to do so, he resumed his job in Colombo. In January 1985 he transferred from Colombo to the Bank's branch in Jaffna. He was promoted from Clerk Grade 7 to Clerk Grade 6 and his salary quintupled from Rs 2,000 a month to Rs 10,000 a month. At the time, he was about twenty-four years old. Mr Tharmalingam's duties at the Jaffna branch of the Bank required him to travel each day to the Sri Lankan Army camp in the Jaffna Fort. Banking operations were conducted in the Fort by all banks in Jaffna because of the large number of robberies elsewhere. Customers would go to the Fort to make deposits and to the Bank's normal premises to make withdrawals. Mr Tharmalingam had to be escorted through the high-security area of the Fort where people were kept in detention. He would take money from vaults in the centre of the Fort out to two rooms which the Army had allocated to the Bank for its functions. He would there serve the Bank's customers who had come to the Fort to make deposits. Mr Tharmalingam's daily trips carrying money from the Fort to the Bank's premises were supported by an Army escort and took him through a stronghold area of the Liberation Tigers of Tamil Eelam ("LTTE"). Sometimes the LTTE held up the vehicle carrying the funds and made off with the money. The LTTE regularly stopped Mr Tharmalingam to ask him about security arrangements within the Fort. He claimed that, under duress, he supplied to the LTTE details of people who were being held in detention and tortured in the Army camp as well as details of the major account-holders at the Bank. He said that the LTTE used the latter information to extort money from the account-holders. He claimed that sometimes he withheld details and that he was tortured for doing so by the LTTE on two or three occasions. He claimed that the Bank knew that the LTTE was extracting information from him but had done nothing for fear of retaliation from the LTTE. In 1985 Mr Tharmalingam married and was promoted to the position of Chief Accountant at the Bank's Jaffna branch. Of his position as Chief Accountant, he said that he answered to the Manager and the Assistant Manager; that he had responsibility for production of the Branch's annual profit and loss report, payment of salaries and crediting of interest to the accounts of customers; that an accountant worked directly under him; that there were fifty people working at the branch when he started there in 1985 but that the number had dropped to about thirty-five by the time he left Jaffna ten years later, because employees used to leave their jobs to escape the fighting. He said that the title "Chief Accountant", as applied to the Jaffna branch, was a "high-sounding nothing" and that formally his position was merely that of a "clerk", although the Manager called him "Chief Accountant". He said that this title was an informal internal designation; that he had had no supervisory duties; and that the only relevant employees were himself and the accountant. In 1986 he completed intermediate and final parts of banking examinations set by the Bankers' Institute. In 1986, the LTTE demanded that Mr Tharmalingam find out how two prisoners, named Rajan and Jegan, were being treated and whether they had been identified as members of the LTTE. Mr Tharmalingam tried to fob off the LTTE and, in response, the LTTE passed false information about him on to the Army. As a result, he was detained by the Army in the Fort for five days and tortured but was released after the Bank intervened. After his release, he gave the LTTE hard-to-get news of the inmates whom he had seen during his incarceration. He continued to work at the Bank and the LTTE continued to extract information from him about accounts at its Jaffna branch. He said that he had to do what the LTTE demanded of him because in the period 1986-1990 the LTTE had been going from house to house and threatening Tamils with dire consequences if they withheld support. From 1990-1995, according to Mr Tharmalingam, the LTTE openly extorted money from wealthy Tamils and held their relatives to ransom. Every Tamil was too frightened to refuse the LTTE's demands. The other bank officers were also of Tamil ethnicity and they too had all been harassed by the LTTE. In 1987, the Indian Peace Keeping Force ("IPKF") arrived in Jaffna and the LTTE withdrew. However, the LTTE asked Mr Tharmalingam to take photographs of the IPKF sentries and of positions in the Fort. Mr Tharmalingam refused and for this he was tortured by the LTTE. He was forced to pay the LTTE Rs 500 a month. In May 1989 he was arrested, detained and beaten by the IPKF at the behest of a man who envied Mr Tharmalingam's progress in his banking career and his position as Chief Accountant of the Jaffna branch. In detention by the IPKF, Mr Tharmalingam was assaulted and humiliated until the Bank intervened and obtained his release. In late 1989 when the IPKF left Jaffna, heavy fighting broke out between the Sri Lankan Army and the LTTE. This interrupted normal activities, including Mr Tharmalingam's work at the Bank, which had to keep shifting its operations from place to place to avoid the constant shelling between rival positions. At this time the LTTE ordered Mr Tharmalingam to dig bunkers at night. This made him unhappy but he had no option but to do the work. All Tamils were in a similar predicament. He decided that he could not continue to live in peace in Jaffna but felt trapped because he could not leave his family. In January 1995, the LTTE ordered Mr Tharmalingam to act as their "bagman" within the Bank. This involved collecting money for the rebel "Fund to Reclaim Our Land" from co-workers and bosses as well as from the Bank's customers. This activity took place openly, account books being kept at the Bank for the purpose. The LTTE made regular visits to the Bank to check the progress of the account. He collected some Rs 300,000 in this way. Because of his role as "bagman", Mr Tharmalingam came to be known as an LTTE supporter by his neighbours. He dreaded being caught by the Sri Lankan Government forces because of this reputation. In fact, however, he did not collect for the LTTE of his own volition and was only trying to save his life. The Bank's officers feared to tell the Bank's head office in Colombo about what was going on for fear of losing their jobs. Some of the customers tried to shift their accounts to Colombo in order to escape the LTTE's demands. In October 1995 the Sri Lankan Army captured Jaffna. The LTTE had ordered all the Tamils to leave Jaffna before the attack started but Mr Tharmalingam preferred to stay rather than to be in the hands of the LTTE militants. Unfortunately, however, his family was caught in the cross-fire and one of his brothers was killed when a shell struck the family's house. The sight of the brother's mutilated body shocked the family and persuaded it to flee the Jaffna area. I interrupt this account of Mr Tharmalingam's claims to note that a death certificate in respect of the brother shows that he died on 1 October 1995 at Neervely from being "hit by a shell". Mr Tharmalingam and his family travelled by land and sea, through constant bombing and shelling, to the Vanni area. They ran out of money as their savings were at the Bank. Mr Tharmalingam wanted to get his old job back at the Bank's head office in Colombo but the LTTE refused to give him a pass. The family tried to make its way to safety through the jungle but was turned back by the LTTE. The LTTE sent Mr Tharmalingam's family back to Vavunikulam but held him for two weeks and made him do menial duties. He was assaulted when he refused to do certain tasks. After this, the LTTE allowed him to travel south to Colombo, on condition that he go without his family. He went under the threat of harm to his family if he did not send the LTTE money from time to time. In January 1996, Mr Tharmalingam arrived in Colombo "with a heavy heart". After speaking to the Bank's head office, he secured a job at the Bank's Wellawatte branch as a casual clerk at Rs 10,000 a month. He says that he got the job because he had a good name in Colombo and because only the Jaffna branch manager had known of his LTTE-linked activities in Jaffna. He sent money to his family to protect them from the LTTE. During the period from January 1996 to March 1997 in Colombo, Mr Tharmalingam was arrested about five times in Army and Police round-ups during security alerts. The reason was that his National Identity Card identified him as a Tamil who came from Jaffna. In particular, in February 1996, after the LTTE bombing of the Central Bank in Colombo, he was held for three days and beaten about the face and body and kicked in the genitals until he bled. He could not walk straight the next day because of the excruciating pain. His brother bargained for his release. The next day, officers of the Colombo CID (a security organisation) arrived at the house where he and his brother lived and demanded money, warning that they would be back. Mr Tharmalingam tried to move to another address but, as a single unaccompanied man from Jaffna, he found it difficult by obtain accommodation. He decided to leave the country with his family. He waited for his family to join him in Colombo but troubles in Vanni prevented them from doing so. His relationship with his brother grew strained because of his troubles with the Police. In October 1996, security forces in Jaffna passed information about LTTE supporters to the CID in Colombo. Mr Tharmalingam was arrested by the Wellawatte Police and, over a period of three days, he was interrogated, starved and made to drink the urine of Police officers as a punishment. A friend from the Bank's head office secured his release. The Police told him not to change his address. In December 1996, Mr Tharmalingam applied for a visitor's visa to Australia for himself and his family but his application was refused. In March 1997, a friend at the Bank warned Mr Tharmalingam that the Jaffna branch had been required to inform the CID about employees who had recently been transferred to, or employed in, Colombo branches of the Bank. The Sri Lankan army, which had confiscated some papers in 1995, realised, after going through them, that Mr Tharmalingam had been instrumental in collecting Rs 300,000 for the LTTE. His friend advised him to leave Colombo. He took that advice and went to Vavunikulam where he contacted an agent who arranged to get him to Australia on a false passport for an amount of Rs 500,000. He returned to Colombo on 25 March and, as noted earlier, departed there on 28 March, arriving in Australia on 31 March. Mr Tharmalingam claims that he fears returning to Sri Lanka as he feels that he is under sentence of death from the security forces. He says that he cannot bear the cruel and degrading behaviour of the security forces in the encounters, round-ups and interrogations which he has experienced. OUTLINE OF REASONS OF THE RRT The RRT's Reasons for Decision are divided into sections addressing the background to the application for review, the legislation, the Convention, relevant information relating to Sri Lanka, Mr Tharmalingam's "Claims and Evidence", the RRT's "Findings and Reasons", its Conclusion and its Decision. Mr Tharmalingam's submissions on the appeal require close attention to be given to the RRT's Findings and Reasons which are conveniently divided into twenty-five numbered paragraphs. (I have found the Member's procedure of recording his findings in this way helpful.) Some findings assume greater importance than others but, because of the nature of Mr Tharmalingam's submissions on the appeal, I think it desirable to refer to them all in a summary fashion. I do not, however, think it necessary or desirable to outline the RRT's reasons for rejecting certain aspects of Mr Tharmalingam's claims or evidence since, generally, the RRT's fact finding is not open to attack and Mr Tharmalingam does not attack it.