Arumainathan, Leonard Jeyan v Minister for Immigration and Multicultural Affairs

[1998] FCA 509

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG72 of 1998

BETWEEN:	LEONARD JEYAN ARUMAINATHAN Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE:	WILCOX J
DATE:	7 MAY 1998
PLACE:	SYDNEY

EXTEMPORE REASONS FOR JUDGMENT

WILCOX J:   I appreciate that the decision in this case is of considerable importance to the parties and particularly the applicant.  However, I have had the benefit of considering before this morning, not only the decision of the Tribunal, but also written submissions on behalf of both parties and I feel able immediately to give a decision on the matter. 

The applicant, Leonard Jeyan Arumainathan, challenges a decision of the Refugee Review Tribunal, given on 22 January 1998, affirming a decision by an officer of the Department of Immigration to refuse him a protection visa. The Tribunal was not satisfied that Mr Arumainathan is a person to whom Australia has protection obligations under the Refugees’ Convention, as amended by the Refugees Protocol, and therefore did not satisfy the criterion set out in s 36(2) of the Migration Act 1958 for a protection visa. Counsel’s submissions helpfully summarise the facts as ultimately determined by the Tribunal and crystallise the single point at issue.

In relation to the facts, it is sufficient for me to note that the applicant is a young Tamil man who was brought up in Jaffna in the north of Sri Lanka.  In 1991 he moved to Colombo and he continued to reside in Colombo until his departure for Australia in November 1997, with the exception of a period of some 9 months earlier in 1997 when he resided at Vavuniya in the northern part of Sri Lanka but south of Jaffna.  Apparently the applicant's mother resided in Colombo and he lived with her during the period he was in that city.  The Tribunal found the applicant was arrested on one occasion on 22 June 1995 and detained for some 2 hours.  Apparently his arrest was at the hands of security forces of the Sri Lankan Government. 

The Tribunal also accepted statements by the applicant that he had been briefly detained at checkpoints in Colombo on three occasions in the latter half of 1995, namely in August, September and November.  As I understand the position, 1995 was a period when there was considerable military activity by the Sri Lankan Government against the Tamil Tigers, the LTTE.  It was not suggested the checkpoint detention was something that occurred only to Tamils; but it may be that Tamils, particularly young male Tamils, were of particular interest to the security authorities at that time. 

The submission made on behalf of the applicant focuses on a key paragraph of the reasons for decision of the Tribunal.  This paragraph is at the end of the reasons, in the section of the reasons for decision headed: “Findings and Reasons”.  The paragraph reads as follows:

“The Tribunal finds that the Applicant could return and live safely in Sri Lanka.  As set out above, the Applicant has not been harmed by either the LTTE or by the security forces in either Jaffna, Colombo or Vavuniya nor is there any reason for the security forces to suspect him of LTTE membership.  The Tribunal notes that the Applicant's mother and other relatives still live in Colombo and he knows people there, including Sinhalese people, as one would expect of someone who lived in Colombo for over five years.  Although the Applicant had not been able to get a job in his field in the past, the Applicant had sufficient funds to travel to and from Vavuniya in 1997 and to fly to and support himself in Australia for some time.  The Tribunal is not satisfied that the Applicant has a well-founded fear of persecution within the meaning of the Convention.”

Counsel for the applicant makes a number of criticisms of this paragraph.  First, he says the reference to the applicant’s pecuniary situation is irrelevant, that a person can be subject to persecution within the meaning of the Refugees’ Convention notwithstanding possession of money.  It think this is obviously correct.  There is no significance in the fact that the applicant had sufficient funds to travel.  At the same time, I do not think this was a factor in the finding that the applicant could "return and live safely" in Sri Lanka.  That point is dealt with in the part of the paragraph which immediately follows the statement.

Mr Beech-Jones makes the point that it is possible for a person to live safely in a country but nonetheless be subject to persecution.  In this regard he refers to the discussion of the meaning of “persecution” contained in the judgment of McHugh J in Applicant A v Minister of Immigration and Ethnic Affairs (1997) 142 ALR 331 at 354 - 355. I accept what Mr Beech-Jones says about that matter. I think it was unfortunate that the Tribunal member chose to use the language of "lives safely" rather than to consider her findings in terms of use of the word "persecution".

Mr Beech-Jones submits this omission is significant because the Tribunal Member misdirected herself as to the appropriate test; it was not enough for her to say that Mr Arumainathan might be able to live safety in Sri Lanka, she had to ask whether she was satisfied there was not a real chance of him suffering persecution if he were returned to Sri Lanka. 

The submission put on behalf of the respondent Minister by his counsel, Mr Reilly, is two-fold.  First, he submits that, as a matter of law, the things that had occurred to the applicant cannot be regarded as “persecution”; consequently, there was no basis for a reasonable apprehension of a real chance of persecution if Mr Arumainathan was returned to Sri Lanka.  In support of this submission he referred me to two decisions of the English Court of Appeal, one of them involving Tamils from Sri Lanka.  The two decisions are Sandralingham v Secretary of State for the Home Department [1996] Imm AR 97 and Kagema v Secretary of State for the Home Department [1997] Imm AR 137. Mr Reilly's other response to the applicant's case - which I should say was his primary response - was that the interpretation of the reasons offered by Mr Beech-Jones was impermissibly narrow and overlooked the full findings and expressions of views by the Tribunal member.

I have reached the conclusion that I should uphold the argument of Mr Reilly to which I have just referred; consequently, I need not consider the alternative submission about the evidence not establishing persecution as a matter of law.  In relation to the alternative submission, I think it is correct, as Mr Reilly submitted, to read the reasons as a whole. 

At an early stage of her reasons, in outlining the law, the Tribunal Member quoted from the judgment of Mason CJ in Chan v Minister of Immigration and Ethnic Affairs (1989) 169 CLR 379, and in particular at 388 the Chief Justice's reference to persecution as requiring "some serious punishment or penalty or some significant detriment or disadvantage". In setting out her findings, the Tribunal Member dealt with various claims made by the applicant, Mr Arumainathan. She accepted his statement that his father had been shot in 1988 by the Indian Defence Force, which was then involved in the civil war in Sri Lanka. She also dealt with the problems faced by Tamil civilians, particularly in the north of the island. I need not set out all that material. It is sufficient to say the findings were comprehensive. The Tribunal Member also referred to country information received from various sources as to the situation in Sri Lanka. She accepted, from that source, that it was plausible that Mr Arumainathan may have been briefly detained at checkpoints in August, September and November 1995, as he had claimed. She accepted that Tamils from the north may be questioned about their presence in Colombo and may be subjected to further questioning if their explanation is implausible. She was not prepared to accept that Mr Arumainathan was kept for more than a few hours or was mistreated or that the detentions were serious. She gave reasons for those findings and they are not challenged. As I have indicated, she then accepted his claim that he was detained and questioned at checkpoints on three occasions in late 1995. The Tribunal Member then dealt with the applicant's life in Colombo. I need not go into the detail of that matter. It is important to refer to the paragraph of her reasons which immediately preceded the paragraph upon which Mr Beech-Jones placed major reliance. This paragraph reads as follows:

“The Tribunal put to the Applicant that even though he was arrested on one occasion for a very short period it appears that proper procedures were followed and that he could live safely in Colombo.  The Applicant responded that he cannot always rely on other people to help him and that he would have to travel around on the bus and would be subjected to identity checks.  Furthermore, his fear of firearms would make him behave suspiciously and this would cause him problems with the authorities.           The Tribunal notes that the Applicant has had this fear since his father died in 1988 but there is no evidence that his behaviour aroused undue suspicion or caused him particular problems in the past.  In any case, the Tribunal does not accept that the Applicant is of any interest to the authorities either in the north or in Colombo.  It was the Applicant's evidence that he was not previously of interest to the authorities either in Jaffna until his departure from there in 1991 or in Vavuniya neither before he came to Australia; he was never harmed, arrested or detained by them in those locations for any reason.  The Applicant was able to travel to and remain in Colombo for over five years.  And although he may have been briefly detained at various checkpoints around the city, he was only arrested once for two hours during which proper procedures appear to have been followed.  The Applicant was issued with a passport in his own name in 1994 and with a replacement passport in late 1997 which indicates to the Tribunal that the Applicant was of no interest to the authorities.”

As I have said, this paragraph uses the language of "live safely" rather than referring to "persecution".  However, reading the paragraph as a whole and bearing in mind that the Tribunal Member had already correctly directed herself, relying on Mason CJ, as to the meaning of "persecution", it seems to me it would be pedantic and unfair to understand her as failing to address the question:  whether what had happened to the applicant in the past amounted to persecution within the meaning of the Convention.  She was aware it was necessary to consider whether there had been some significant detriment or disadvantage, and that was the whole point of her consideration of the applicant's history and manner of life in Colombo and, in particular, the extent to which he was of interest to the authorities or had been detained or otherwise inconvenienced by them.  She noted the point the applicant made to her, that he was particularly afraid of firearms because of his father having been shot, and she took that into account.  But she said, I think reasonably enough, that, notwithstanding that he might react in an unusual way to firearms, that had not caused him any particular problem in the period between his father's death in 1988 and his departure from Sri Lanka at the end of 1997 - almost 10 years.  During that time he had been arrested and detained for two hours on one occasion and briefly held at checkpoints, apparently along with many other people, on three occasions in 1995.  I think it is clear enough that the Tribunal Member was asking herself whether all of this amounted to the type of significant disadvantage to which Mason CJ was referring, and which should cause her to reach the view that he had in the past been subjected to “persecution” within the meaning of the Convention.

The Tribunal did not fail to address the future situation.  In the passage to which Mr Beech-Jones referred she talks about the possibility of the applicant returning and living safely in Sri Lanka.  I think this must mean live without persecution in the way I have indicated.  She justifies this statement by pointing out has not previously been harmed either by the LTTE or the security forces and there was no reason for the security forces to suspect him of membership of the LTTE.  She also refers to the support he would have in Colombo.

I think Mr Beech-Jones has put the matter as well as it can be put.  But to uphold his approach would run counter to the many authorities in this Court about the way in which decisions of Tribunals should be approached - they should not be approached in a nit‑picking, pedantic way by judges anxious to find fault with expression but with a real attempt to understand what it was that the Tribunal Member was finding and to consider whether that complied with the requirements of the relevant legislation.

Taking the latter approach, I am left with a confident view that the Tribunal did address the critical question.  As I say, it would have been better perhaps if the Member had spoken of "persecution" rather than "live safely".  But in context I think it is fairly clear that this is what she was addressing.  Accordingly, I am not satisfied that the Tribunal Member fell into any error of law and no other ground is suggested for setting aside the decision.  The appropriate order is that the application be dismissed. 

[There was discussion regarding costs.]

Costs are sought and I see no reason why normal orders should not be made.  The application will be dismissed with costs.

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox

Associate:

Dated:            7 May 1998

Counsel for the Applicant:	Robert Beech-Jones
Solicitor for the Applicant:	Nan Solicitors
Counsel for the Respondent:	Tim Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	7 May 1998