Applicant M18 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 834

FEDERAL COURT OF AUSTRALIA

Applicant M18 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 834

APPLICANT M18 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NO. VID 510 OF 2004

HEEREY J
14 JUNE 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 510 OF 2005

BETWEEN:	APPLICANT M18 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HEEREY J
DATE OF ORDER:	14 JUNE 2005
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 510 OF 2005

BETWEEN:	APPLICANT M18 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HEEREY J
DATE:	14 JUNE 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an application, remitted from the High Court, for Constitutional writs.  The applicant, who at the time of the hearing by the Refugee Review Tribunal was a single woman aged 43, is a citizen of Sri Lanka and of Tamil ethnicity.  She arrived in Australia on 14 January 1998 on a false Canadian passport.  On 27 February 1998 she lodged an application for a protection visa.  That application was rejected by a delegate of the Minister on 19 June 1998.  She applied to the Tribunal for review of the delegate's decision. On 13 December 2000 the Tribunal affirmed the delegate’s decision.  On 21 January 2003, over two years later, the applicant filed an affidavit in the High Court seeking an order nisi.  On 26 February 2004 Hayne J remitted the proceeding to this Court.  The Minister does not rely on the delay in making the application for review to the High Court.

2. The applicant lived most of her life in Meesalai, in the north of Sri Lanka.  Her family was severely affected by the civil war in Sri Lanka.  In 1990 her brother was killed by the Sri Lankan army.  In 1987 her father was killed by a bomb attack by the air force.  In 1989 her sister was killed by the Sri Lankan army during the Indian Peacekeeping Force (IPKF) occupation.  The applicant claimed that between 1990 and 1995 she provided stenography and typing services to the Liberation Tigers of Tamil Eelam (LTTE) during their de facto administration and received anonymous life-threatening letters from “pro government Tamil sources” as a result of this assistance.  She claims she was forced to disguise herself and hide in forests during the IPKF period to protect her life because of her assistance to the LTTE.

3. She voluntarily tutored poor children who later resorted to rebel groups due to their lack of hope in the Sinhalese administration.  Her family members actively supported the Tamil United Liberation Front.  She was involved in social activities in the community in Kilinochchi. 

4. She claims that in February 1996 she was arrested by the Eelam Peoples Revolutionary Liberation Front (EPRLF), taken to a makeshift camp, detained, blindfolded and mistreated and given electric shocks.  The EPRLF alleged that she was her sister who in fact died in 1989.  She was subsequently allowed to leave the camp and asked to report upon demand to the EPRLF cadres who operated in conjunction with the Sri Lankan army.  Shortly afterwards she escaped to Nachchikudah.  Life there was very difficult because of bombardments and gunfire.

5. She escaped to Colombo by boat dressed as a Muslim woman with a Muslim identity card.  She arrived in Colombo in March 1996.  She says while there she was continually harassed by Eelam Peoples Democratic Party (EPDP) cadres, arrested several times, harassed for money and finally kept incommunicado in a dark room for months just prior to her departure in January 1998. 

6. She fears that if she is returned to Sri Lanka she could be subject to extrajudicial arrest and detention, torture, disappearance or death.  Her fears are based upon her ethnicity, perceived, imputed and real political opinions, and past human rights activism.  Her fears pertain to actions of the security forces, pro-government Tamil gangs, the Sinhalese, Muslim extremists, Sinhalese politicians and their private armies, the LTTE and the Indian secret agencies, and the Tamil National Army, if she returns to Sri Lanka.

7. In its decision the Tribunal accepted the applicant was a Sri Lankan national who had lived most of her life in the north, that her family had suffered in the way mentioned in the course of the conflict between the government and the LTTE resulting in the death of her father, her sister and her brother, and that she was displaced as a result of the conflict and went to live in Colombo.  However, the Tribunal in substance rejected the remainder of her claims.  In doing so, it said it took into account that she had a medical condition, namely a heart problem and a thyroid condition, and had undergone the trauma of a civil war. 

8. After questioning, the Tribunal was not satisfied with her claims that she was a person who worked for the LTTE and was suspected of having done so by the authorities and had been detained and tortured on a number of occasions.  The Tribunal gave reasons for rejecting that part of her account, including that she was unable to tell the Tribunal the full name of the LTTE and the EPRLF and told the tribunal she did not know what the EPDP was, even though her earlier written submission claimed this group was the source of her illegal detention in Colombo. 

9. Her account of her time in Colombo was confused.  In her protection visa application she claimed a two‑year residency in Colombo.  However she told the Tribunal she went to Colombo to meet her brother in 1996 and then returned to the north and was in Colombo for three days prior to coming to Australia; she later changed this to two months.  She was unable to provide clarification, particularly of her time in Colombo.  The Tribunal was not satisfied that she had undergone the experiences of persecution she claimed. 

10. The Tribunal was not satisfied that she had ever worked for the LTTE. The Tribunal found that the applicants’ claims of being known and suspected as an LTTE worker were exaggerated. The deaths of three members of her family as a consequence of the war were accepted, but it was not accepted that these were targeted deaths.  While the Tribunal accepted that the killing of her brother made her very opposed to the Sinhalese‑dominated government and army, it was not satisfied she had become an activist against it. The Tribunal found that her family were the unfortunate victims of the usual random acts of war. 

11. The Tribunal was not satisfied about the applicant’s claims of detention in February 1996.  The Tribunal was not satisfied that the range of authorities and agencies from whom she feared harm - including the government, the Sinhalese politicians, LTTE extremists, Muslims and extremist Sinhalese and Indian agencies were objectively well‑founded.  It did not accept that she had worked for the LTTE and so did not accept that she was of any continuing interest to the Sri Lankan authorities and security agencies of the government.

12. The Tribunal did accept that as a Tamil from the north she would have been subjected to checks at the various checkpoints in and around Colombo, but such checking is not in itself persecutory.  There was no doubt in the Tribunal's mind that the applicant's home area was subject to violent combat and that she and her mother were among many thousands of displaced persons.  The Tribunal accepted that it would be unsafe for her to return to the northern area of the country.  However, the Tribunal was satisfied that she had in fact spent two years out of the north and in Colombo prior to coming to Australia. 

13. The Tribunal did not accept her statement that she was subjected to continuous harassment by the EPRLF or the EPDP while she was in Colombo.  The Tribunal, amongst other reasons, noted that while she named this group as her major enemy she was unable to clarify what the group did except in the most general of terms; nor could the Tribunal find any reason why she would be the victim of Sinhalese politicians, their parties or their private armies. 

14. The applicant was not a person who holds office in any group or a person of influence or any clout.  The Tribunal accepted that she would need to register her presence at a police station in Colombo but it relied on information from the Department of Foreign Affairs and Trade that this registration was commonplace and did not provoke persecution by the police of those who register. Likewise, the practice of randomly stopping persons in Colombo was not persecution.  In summary, the Tribunal said:

    “The Tribunal is satisfied that while the applicant has suffered family losses, losses of property and of her home, she has been able to safely relocate to another part  of the country.  It is not satisfied that she has been detained and tortured, as she has claimed.  It is not satisfied that the mere fact that she is a Tamil from the north will mean that she faces a real chance of persecution.  She is a 43‑year‑old single woman, and, as the Tribunal has found, without a political profile.  The Tribunal is satisfied that she can be protected by her own government.  It is satisfied that her claims to fear of persecution from a range of people and organisations is not objectively well‑founded.”

15. The first ground advanced in argument in the present application was that the Tribunal failed to take into account the applicant's claim that she was a member of a social group, that is to say, Tamils and Tamil women from the north.  The Tribunal did not consider her “vulnerability as a single Tamil woman”.  However, neither in the amended application nor in the detailed written contentions of fact and law was any reference made to the significance for the refugee claim of the applicant being a woman; still less, does such a claim appear to have been advanced before the Tribunal.  It was clear that her identity as a Tamil, as a matter of race, was central to her claim and that was quite adequately dealt with by the Tribunal in the way that I have indicated. 

16. The second ground asserted was that the Tribunal committed jurisdictional error in that its decision was based on a finding, or inferences of fact, that was not supported by probative material or logical grounds and that no reasonable person acting within jurisdiction and according to the law would have so reached.  In support of this ground the finding that requiring to register at a police station would not provoke persecution was put forward.  In the contentions of fact and law it was argued:

    “This finding is not sound as there is not sufficient probative material before the tribunal to support the inference that there is not a reasonable apprehension of persecution.”

17. This submission misstates the role of the Tribunal.  While, as the authorities establish, the Tribunal should make allowances for trauma that applicants have suffered, in the end result it is for the applicant to establish that she is a refugee within the meaning of the convention, that is to say, she has a well‑founded fear of persecution on return to her country of nationality on one or more of the grounds specified in the Convention.  The Tribunal’s function was to assess the prospects for her in Colombo.  It did so in reliance on rational material and the conclusion it reached was a conclusion of fact, which was exclusively a matter for it.  No error has been established. 

18. Accordingly, the application will be dismissed with costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate:

Dated:            14 June 2005

Counsel for the Applicant:	P F  Condliffe
Solicitor for the Applicant:	Victorian Bar Legal Assistance Scheme
Counsel for the Respondent:	S Hay
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	14 June 2005
Date of Judgment:	14 June 2005