Affairs

[1999] FCA 1168

FEDERAL COURT OF AUSTRALIA

Sathiyanathan v Minister for Immigration and Multicultural

Affairs [1999] FCA 1168

MIGRATION – Migration Act 1958 (Cth) – application for review of a decision of the Refugee Review Tribunal – whether error of law – need for consideration of past and future persecution – whether refugee on basis of general human rights experiences of Tamils in Sri Lanka

Migration Act 1958 (Cth) s 476(1)(e)

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559

NADARAJAH SATHIYANATHAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 1228 of 1998

BRANSON J
MELBOURNE (video link to SYDNEY)
26 AUGUST 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1228 of 1998

BETWEEN:	NADARAJAH SATHIYANATHAN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	BRANSON J
DATE OF ORDER:	26 AUGUST 1999
WHERE MADE:	MELBOURNE (video link to SYDNEY)

THE COURT ORDERS THAT:

The decision of the Refugee Review Tribunal be affirmed.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1228 of 1998

BETWEEN:	NADARAJAH SATHIYANATHAN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	BRANSON J
DATE:	26 AUGUST 1999
PLACE:	MELBOURNE (video link to SYDNEY)

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an application under s 476 of the Migration Act 1958 (Cth) (“the Act”) for review of a decision of the Refugee Review Tribunal (“the Tribunal”) by which the Tribunal affirmed a decision of a delegate of the respondent not to grant to the applicant a protection visa.

2. In the circumstances of this case, the critical criterion for the grant to the applicant of a protection visa was that the Tribunal was satisfied that he is a person to whom Australia has protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (together the “Refugees Convention”).  For the Tribunal to be satisfied that Australia has protection obligations to the applicant under the Refugees Convention it was required to be satisfied that he was 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 ….”  (Article 1A(2) of the Refugees Convention).

   GROUNDS OF REVIEW

3. The ground of review relied upon by the applicant in this case is that provided for by s 476(1)(e) of the Act.

4. Section 476(1)(e) provides for the following ground of review:

   “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 …”.

   FINDINGS AND CONCLUSIONS OF THE TRIBUNAL

5. The applicant is a thirty-five years old Tamil of Sri Lankan nationality.  He came to Australia (not for the first time) in May 1997 and applied for a protection visa.  His evidence was that from 1985 until 1995 he had live in Jaffna, studying and running a business.  Between September 1996 and January 1997 he worked in Japan.  He returned to Sri Lanka in January 1997 and visited Australia in February 1997.  He did not claim to be a refugee on that visit but returned to Sri Lanka.  However, he returned to Australia in May 1997 and, as mentioned above, applied for a protection visa.

6. Although the Tribunal accepted that the applicant had been traumatised by some event or events in Sri Lanka, it did not accept the truth of his claims that he was detained, interrogated and beaten after his return to Sri Lanka from Australia at the end of February 1997, and that he obtained his release only after the payment of a bribe.

7. The Tribunal did, however, accept that two of the applicant’s brothers may have joined the Liberation Tigers of Tamil Eelam (“LTTE”) in 1984, that he may have been detained for three hours in September 1984 because he resembles one of his brothers, that he may have been rounded up with other young people in 1985 and detained for some days, and possibly tortured, by the security forces.  The Tribunal further accepted that in the early part of 1985 the applicant’s family moved to Jaffna and that in 1988 he may have been detained by the Indian peace-keeping force and beaten by Indian soldiers.  Moreover, the Tribunal accepted that the applicant may have joined the LTTE student movement or recreation club while studying at Jaffna University and that he had been required to assist the LTTE during this period (when Jaffna was under the control of the LTTE) by digging bunkers and helping the LTTE wounded.

8. The Tribunal considered country information concerning Sri Lanka which confirmed that for the last fourteen years the government of Sri Lanka has been fighting with the LTTE.  It briefly noted the history of the conflict.  It also noted a recent cable from the Australian Department of Foreign Affairs and Trade which reported that the “human rights situation in the East [of Sri Lanka] remained bleak.”

9. The Tribunal reached the following conclusion:

   “I do not consider … that these facts … mean that the Applicant has a well-founded fear of being persecuted for a Convention reason if he returns to Sri Lanka now or in the foreseeable future.  By his own account, the Applicant made his way back to Trincomalee towards the end of 1995, passing safely through the Government security checks at Vavuniya.  He established a business in Trincomalee and had no major problems with the Sri Lankan security forces.  From September 1996 until January 1997 he worked in Japan and he then returned to Sri Lanka, which suggests that at that time he did not fear that he would be persecuted on his return.  Indeed the Applicant does not claim that he held such a fear.  He claims that his fear arises from the events which occurred after his return to Sri Lanka from Australia in February 1997.  I have rejected the Applicant’s account of [those] events ….

   … I do not accept that [the applicant] faces a real chance of being persecuted by the Sri Lanka[n] authorities by reason of his peripheral involvement in the LTTE while living in Jaffna.

   … The Applicant is in no different position to thousands of other people who lived on the Jaffna Peninsula while it was under the control of the LTTE in having been required to dig bunkers and help the LTTE wounded.  I do not accept that the fact that he performed such tasks for the LTTE will attract the adverse attention of the Sri Lankan authorities.

10. The Tribunal then rejected the proposition that the applicant has a well-founded fear of being subjected to extortion for a Convention reason if he returns to Sri Lanka and turned to consider whether the applicant “is a refugee simply on the basis of the experience of many people like him in the North and East of Sri Lanka and the human rights situation in Sri Lanka, especially for Tamils”.  On this final issue the Tribunal concluded:

    “… I do not consider that the evidence before me establishes that all Tamils in Sri Lanka have a well-founded fear of persecution for the purposes of the Convention merely by reason of their race (or their nationality, if Tamils are regarded as a nation) or their imputed political opinion.  I have borne in mind that the security situation in the East of Sri Lanka continues to be tense, as reflected in the advice from the Australian Department of Foreign Affairs and Trade.  …  Nevertheless I do not consider that the Applicant is in danger of harm amounting to ‘persecution’ if he returns to Sri Lanka now or in the foreseeable future.  I note, once again, that having left Jaffna the Applicant apparently re-established himself in his home town of Trincomalee towards the end of 1995.  He ran a business which he said was successful and he married a teacher.  He then went to Japan to work but he returned to visit his wife in January 1997 and does not claim to have experienced any major problems in leaving the country and returning or living in Trincomalee until after he returned from his visit to Australia at the end of February 1997.  Having rejected the Applicant’s account of his experiences in Sri Lanka after he returned there at the end of February 1997, I do not accept that he faces a real chance of being persecuted for a Convention reason if he returns there now or in the foreseeable future.”

    CONTENTIONS OF THE APPLICANT

11. The applicant contended, first, that the Tribunal erred in law in the approach which it took to the determination of the question of whether it was satisfied that the applicant has a well-founded fear of persecution should he return to Sri Lanka.  Ms Wilkins, counsel for the applicant, submitted that the Tribunal acted essentially on the basis that because there had been no past persecution of the applicant for a Convention reason there was no basis upon which he could have a well-found fear of such persecution in the future.

12. Secondly, the applicant contended that the Tribunal failed to consider whether the applicant, as an individual, had a well-founded fear of persecution for reason of his being Tamil.  Relevance was placed on the Tribunal’s statement that it did not “consider that the evidence … establishes that all Tamils in Sri Lanka have a well-founded fear of persecution …”.  It was submitted that by this statement the Tribunal mis-stated the appropriate test and raised the barrier far too high.

    CONSIDERATION

13. As Dawson J pointed out in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 399:

    “…  The circumstances in which an applicant for recognition of refugee status fled his country of nationality will ordinarily be the starting point in ascertaining his present status and, if at that time he satisfied the test laid down, the absence of any substantial change in circumstances in the meantime will point to a continuation of his original status”.

    See also per Toohey J in Chan’s case at 406.

14. However, the starting point does not constitute the whole of the necessary inquiry.  In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281 Brennan CJ, Toohey, McHugh and Gummow JJ observed:

    “The chance of persecution is not a fact to be inferred solely from facts that are found to have existed; the very uncertainty of what has happened in other cases is itself material to the assessment of the chance of persecution in the instant case.  As a matter of ordinary experience, it is fallacious to assume that the weight accorded to information about past facts or the opinion formed about the probability of a fact having occurred is the sole determinant of the chance of something happening in the future: the possibility that a different weight should have been attributed to pieces of conflicting information or the possibility that the future will not conform to what has previously occurred affects the assessment of the chance of the occurrence of a future event.”

15. So much is, as I understand it, not in controversy between the parties.  The issue which requires determination is that of whether the Tribunal did act on the basis that its findings as to the applicant’s experience in Sri Lanka were determinative of whether he had a well-founded fear of persecution should he return.

16. The Tribunal’s reasons for decision are to be fairly read by an eye not “keenly attuned to the perception of error” (see the authorities referred to in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287, cited in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.

17. Reading the Tribunal’s reasons in this way, I am not satisfied that the Tribunal made the error of concentrating solely on the applicant’s past experiences in Sri Lanka so as to fail properly to consider the chance that his future experiences should he return to Sri Lanka might be different.

18. As I read the Tribunal’s reasons for decision, it considered first whether anything that the applicant had done, having regard to the life that he had led in Sri Lanka, gave rise to a real chance of his being persecuted for a Convention reason.  The Tribunal concluded, for the reasons which are identified in para 9 above, that there was nothing that the applicant as an individual had done which gave rise to a real chance of his being persecuted for a Convention reason.

19. The Tribunal then considered whether the applicant might be a refugee simply on the basis of the general human rights experiences in Sri Lanka of Tamils like him.  The Tribunal was not satisfied that all Tamils in Sri Lanka have a well-founded fear of persecution for a Convention reason.  The appropriateness of this finding was not challenged by the applicant.  The Tribunal considered whether any matter peculiar to the applicant could give rise to his having a well-founded fear of persecution for a Convention reason and further considered whether Tamils generally who share a similar profile with the applicant would have a well-founded fear of being persecuted for a Convention reason.  The Tribunal, as I read its reasons for decision, concluded on the evidence before it, which included evidence of the applicant’s own experience, that it could not be satisfied on either basis that the applicant has a well-founded fear of persecution should he return to Sri Lanka.

20. Although the Tribunal’s use of the adjective “tense” to describe the security position in Sri Lanka might be thought to result in an understatement of the severity of the position as revealed by the totality of the material before it, I am not satisfied that the Tribunal failed to take into account the seriousness of the political and security position in Sri Lanka.  There was detailed country information before the Tribunal and, in another passage from its reasons for decision, it noted that the Australian Department of Foreign Affairs and Trade had reported in April 1998 that the human rights situation in the East of Sri Lanka remained bleak.  The Tribunal did, in my view, give proper consideration to what might reasonably be expected to happen in the future, and did not limit itself to a consideration of what had happened to the applicant in the past.

21. For essentially the same reasons, I do not consider that the Tribunal adopted the inappropriately harsh test of requiring the applicant to establish that all Tamils in Sri Lanka have a well-founded fear of persecution.  Rather, the Tribunal considered the position of the applicant himself in two stages.  First, would he attract the adverse attention of the Sri Lankan authorities by reason of anything that he had done in the past.  Secondly, would he attract the adverse attention of the Sri Lankan authorities by reason of who he was: that is a Sri Lankan Tamil with his particular profile.  The Tribunal, in my view, is to be properly understood as having concluded that the applicant’s own past experiences established both that his past activities would not cause him to attract the adverse attention of the authorities and that he was not at real risk, either now or in the foreseeable future, simply by reason of his profile.

22. Having regard to the nature and strength of the Tribunal’s findings, no error resulted in my view, from the Tribunal not applying the “what if I am wrong test” (Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576).

    CONCLUSION

23. The decision of the Tribunal will be affirmed.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:             24 August 1999

Counsel for the Applicant:	Ms Wilkins
Solicitor for the Applicant:	McDonnells Solicitors
Counsel for the Respondent:	Mr Williams
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	9 June 1999
Date of Judgment:	26 August 1999