B90 of 2003 v Refugee Review Tribunal
[2004] FCA 1557
•2 DECEMBER 2004
FEDERAL COURT OF AUSTRALIA
B90 of 2003 v Refugee Review Tribunal [2004] FCA 1557
MIGRATION – protection visa – whether Tribunal misunderstood the meaning of “well-founded fear of persecution” – applicant Tamil from north of Sri Lanka – Refugee Review Tribunal considered that only persons of special interest to the security forces were at risk of persecution – visa applicant had been tortured in 1992 and family members had been persecuted – whether Tribunal considered fear of persecution from a non-government source – whether Tribunal considered that proposed re-location was reasonable
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 considered
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 considered
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 consideredB90 OF 2003 v REFUGEE REVIEW TRIBUNAL AND MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Q 118 OF 2004
DOWSETT J
2 DECEMBER 2004
BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q 118 OF 2004
BETWEEN:
B90 OF 2003
APPLICANTAND:
REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENTMINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENTJUDGE:
DOWSETT J
DATE OF ORDER:
2 DECEMBER 2004
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1. The application be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q 118 OF 2004
BETWEEN:
B90 OF 2003
APPLICANTAND:
REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENTMINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENT
JUDGE:
DOWSETT J
DATE:
2 DECEMBER 2004
PLACE:
BRISBANE
REASONS FOR JUDGMENT
THE APPLICATION
The applicant was born on 27 January 1961 in Sri Lanka and entered Australia on 3 February 1998. On 12 March 1998 he applied for a protection visa, which application was refused by a delegate of the second respondent (the “Minister”) on 23 April 1998. The first respondent (the “Tribunal”) affirmed that decision on 1 May 2000.
On 15 October 2003 the applicant applied in the High Court for injunctive relief and for the issue of constitutional writs setting aside the Tribunal’s decision. The application was remitted to this Court. It is probable that the applicant needed an extension of time in which to seek the issue of constitutional writs in the High Court. However it will not be necessary to consider that question unless his claim appears to have some merit.
BACKGROUND FACTS
The applicant’s mother was Roman Catholic and his father, Hindu. He told the Tribunal that he was born in the Jaffna area in the north of Sri Lanka. However his National Identity Card (“NIC”) and passport state that he was born in Colombo. He said that in 1977 his father bribed officials to issue a birth certificate showing that he was born in Colombo, ‘…in order to protect the Applicant from the adverse scrutiny visited on Tamils from Jaffna.’ The Tribunal did not accept this explanation, finding that the applicant was born in Colombo.
Although the Tribunal doubted the applicant’s credibility because of ‘… some inconsistent statements …’ it did not dismiss all of his evidence as being unworthy of credit. The applicant claimed that he had studied in Nelliyady in Jaffna from 1966 until 1975. The Tribunal accepted this. His father was a public servant. He was transferred to Colombo in 1975, and the family moved to Wattala, a suburb of that city. The applicant attended a Roman Catholic school in the area and then went to work in his brother’s business in the same area.
The Tribunal observed that:
‘The Applicant’s claims focus on his ethnicity and accusations of an association with the Liberation Tigers of Tamil Eelam (LTTE/ Tamil Tigers). He and other family members were the victims of abuse and harassment by Sinhalese, particularly during periods of racial disharmony in 1977, 1982 and 1983. In the serious racial riots of 1983, the family home was severely damaged and the family found shelter in a church and then in a refugee camp in Colombo. They stayed there for three months and then went to Jaffna. The Applicant’s father was directed to return to work after some months but he did not wish to live in Colombo and could not be transferred back to Jaffna. He believed, in any case, he would not be able to pass a newly introduced Sinhalese language test for civil servants. He went to Colombo and proffered his resignation and returned to Jaffna.’
In 1985 the family returned to Nelliyady, where the applicant and his brother operated a shop. LTTE sought to recruit them, and they were, at the same time, harassed by security authorities for suspected involvement with that group. The applicant claimed that the Indian Peace Keeping Force (“IPKF”) detained and tortured him and his brother for two weeks in 1987, and that when they were released, they found that their store had been burgled. The applicant first raised this incident at the hearing. For this reason the Tribunal did not accept that it had occurred. The Tribunal substantially accepted the following account of subsequent events:
‘In 1992, [the applicant] and his brother were arrested after fighting between the LTTE and the Army and the consequent killings of some soldiers and an army brigadier. The Applicant was detained for fourteen days, during which he was tortured. His brother was detained for 21 days and also tortured. After their release, they found the family shop had been burgled. Subsequently, the Army bombed an LTTE camp and members of the latter group harassed the Applicant after alleging he had passed on information to the Army while he was in detention. The LTTE then pressured the Applicant or his brother to join that organisation.
After the Army released him in 1992, the Applicant was often detained for questioning and on one occasion he was held for three days. …
On 27 January 1997, the Applicant returned from Church with his mother only to find that his brother was abducted by people in a jeep and his father was killed during that incident. His brother has not been heard of since. He told the Tribunal he did not know who the perpetrators were although he thought they were from the Army. On 21 May 1997, his sister disappeared and returned after three days, distraught after being the victim of rape by army personnel. She committed suicide three days later.’
It may be that the Tribunal rejected the claim that he was detained for three days. In any event, following these incidents, the applicant’s mother urged him to leave the country. In June 1997 he travelled to Colombo with that intention. He told the Tribunal that he travelled along the main road with a truck driver and one of his father’s friends, who was ‘…an important public servant… .’ He was stopped at army checkpoints and by LTTE. He stayed in Colombo until his departure for Australia in late January or early February 1998. He claimed that he was twice detained for two weeks and tortured on each occasion. These incidents followed bomb blasts in the city. The Tribunal did not accept this evidence.
The applicant claimed that his father’s friend helped him to obtain a passport. He was advised not to use that passport to leave Sri Lanka. False documents were supplied for that purpose. The applicant claimed that he left his passport in Sri Lanka and that it was sent to him in Australia. The Tribunal found that there were no exit stamps in his passport, and that he had not used it to leave Sri Lanka. It then concluded:
‘…that [the applicant] has not disclosed the reasons he failed to use it for that purpose. Having already passed many security checks in the months before he left, the Tribunal is satisfied that his reason for not using that passport to depart Sri Lanka is unrelated to the explanations he has provided in his protection visa and review applications.’
The Tribunal noted that information from the Department of Foreign Affairs and Trade indicated that a Sri Lankan passport could not be obtained without a NIC, and that passports must be collected in person.
The Tribunal considered country information provided by the Department of Foreign Affairs and Trade and by the United Kingdom Home Office. That information revealed that young male Tamils from the north and north-east of the country, especially Jaffna, who could not speak Sinhalese were likely to be the subject of scrutiny in Colombo. The United Kingdom Home Office stated in its Sri Lanka Assessment dated September 1999 that those who had recently come to Colombo from a war zone, who had a relative known to be an LTTE member or who were themselves suspected, or who had visible scars were likely to be the subject of scrutiny. The report also stated that thousands of Tamils were arrested during “cordon and search” operations, in a way described by Amnesty International and the Refugee Council as ‘… arbitrary and indiscriminate.’
THE TRIBUNAL’S DECISION
The Tribunal concluded that the applicant was of no particular interest to either the security forces or LTTE. It accepted that in Sri Lanka, he might be stopped and questioned from time to time but would be able to satisfy security forces that he was not associated with LTTE. He would not be persecuted. These conclusions were based upon the following findings:
·that as the applicant was not attacked when his brother and sister were attacked, such attacks were probably motivated by some particular interest which the security forces had in them, but not in him;
·that he was allowed to pass through army checkpoints between Jaffna and Colombo, using a security pass obtained for that journey;
·that, although he was detained on numerous occasions, he was, with the 1992 exception, always released, indicating that the security forces ‘…did not believe he was associated with the LTTE’;
·that it was legitimate for the Sri Lankan government to ‘…otherwise detain and question him and other citizens in the context of a bloody civil war’, and that such behaviour did not constitute persecution; and
·that he stayed in the same place in Colombo for eight months before leaving for Australia.
The Tribunal also concluded that if the applicant returned to Jaffna and was there harassed by LTTE, he would be able to seek protection from the security agencies. If not, it would be reasonable for him to relocate to Colombo.
GROUNDS OF REVIEW
The applicant initially raised the following grounds:
·that there had been a breach of the rules of procedural fairness in that he had no opportunity to respond to adverse material and in that ‘… part B documents of the original decision …’ were not before the Tribunal;
·that the respondent failed to take into account relevant considerations ‘… namely the compelling and compassionate circumstances leading to major changes beyond [the applicant’s] control’;
·that the decision was so unreasonable that no reasonable person could make it; and
·that the Tribunal failed to exercise a power and erred in law.
A barrister, apparently on instructions from the applicant, forwarded written submissions in connection with this case, but did not appear. The applicant relied upon those submissions. They raised the following additional grounds:
·that the Tribunal ‘… misconstrued and misapplied the definition and notion of “persecution” and “well founded fear” …’;
·that the Tribunal failed to take into account the applicant’s individual circumstances;
·that the Tribunal did not consider the applicant’s fear of persecution by LTTE, or whether the government of Sri Lanka would be able to protect the applicant from persecution from that source;
·that the Tribunal erroneously assumed that the authorities in Sri Lanka kept accurate records (presumably concerning the applicant) and acted only on well-founded suspicions;
·that the Tribunal erred in inferring that the applicant’s brother and sister were targeted by the security forces for some reason that did not apply to the applicant;
·that the Tribunal erred in ‘… accepting selective country information… ’; and
·that the applicant had no connection with Colombo (presumably leading to the submission that the Tribunal erred in concluding that the applicant could reasonably be expected to re-locate to that city in order to avoid “pressure” from LTTE).
Whether the Tribunal erred in its construction of “persecution” and “well-founded fear”
The applicant submitted that:
‘It is difficult to see how any one in the applicant’s shoes would not be severely traumatised by the experiences recited by him in his statement (1). Abduction of his brother and his disappearance (presumed to have been killed), (2), His father getting killed by the army, when he attempted to intervene (3) His sister getting raped by Army personnel and she ended up committing suicide three days later. (4) His only experience of torture during his detention in custody in 1992 (These have been set out in his statement and were not rejected by the Tribunal) The Tribunal apparently did not regard those experiences to be sufficiently serious or severe to be considered ‘persecution’ suffered by the Applicant. The Tribunal apparently did not consider the psychological impact of the personal experiences of the Applicant and did not ask the question whether he had more reason to have a well founded fear by reason of his own personal experience than some one who had not … undergone such experience.’
It does no injustice to the applicant’s claim to say that this paragraph summarizes the bulk of his complaints concerning the Tribunal’s decision. It is submitted that given his family’s experience, it is not unreasonable that he should fear persecution at the hands of the Sri Lankan authorities. Such fear was, to some extent, supported by the country information which suggested that:
‘The likelihood of further investigation is also high for those … who have a relative known to be an LTTE member … .’
I should add that the Tribunal appears to have accepted that the incident involving the abduction of the applicant’s brother and the death of his father was motivated by a Convention reason. It also seems to have accepted that his sister’s mistreatment by army personnel was similarly motivated. It is, in effect, submitted that in the circumstances, the Tribunal could only have rejected the applicant’s claim if it had misunderstood the relevant test.
The Tribunal considered, on the one hand, the history of quite horrible abuse suffered by members of the applicant’s family, apparently at the hands of the security forces and apparently for reasons associated with their Tamil ethnicity or, perhaps, their perceived support of LTTE, and on the other, the relatively quiet life led by the applicant in both Jaffna and Colombo, save for the one significant incident in 1992. It also relied upon available country information which suggested that he was not in those categories of Tamils identified as likely to be of interest to the authorities. The Tribunal concluded that there was no real chance that the applicant would face persecution for Convention reasons in Sri Lanka, apparently giving greater weight to the applicant’s own experience and the country information than to the treatment of his brother (and incidentally, his father) and his sister. It recognized that he had been imprisoned for an extended period in 1992, but not otherwise. It presumably discounted that incident as a reliable guide to future events on the basis that it was, in the applicant’s case, an isolated event. It inferred that the reason that the applicant was not attacked in 1997, when his brother and his sister were attacked, was that they were of interest to the authorities and he was not. That was not the only available inference, but it was available to the Tribunal, particularly having regard to the country information as it applied to the applicant.
As I have observed, the country information suggested that a person might be “investigated” if a relative was known to be an LTTE member. The treatment of the applicant’s brother and sister may have been motivated by suspicion of LTTE involvement, although there is no direct evidence to that effect. The Tribunal seems to have concluded that the adverse attention to them was prompted by something other than their Tamil ethnicity. Suspected association with LTTE is the most likely explanation. It might well follow that the applicant would be a possible target for further “investigation” in light of the country information. However the Tribunal concluded that the applicant’s experience before and after the incidents involving his siblings and his father demonstrated that the security forces were not interested in him. This effectively disposed of those incidents as objective bases for fear of persecution in the future. As I have said, that conclusion was open on the evidence. In any event investigation is not necessarily persecution.
Prima facie, the Tribunal’s decision involved the evaluation of evidence, which evaluation led to a particular conclusion. There is no apparent legal error. However the applicant points to comments made by Gaudron J in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 415, as supporting his position. Her Honour said:
‘The definition of “refugee” looks to the mental and emotional state of the applicant as well as to the objective facts. It is a commonplace, encapsulated in the expression “once bitten, twice shy”, that circumstances which are insufficient to engender fear may also be insufficient to allay a fear grounded in past experience. Although the definition requires that there be “well-founded fear” at the time of determination it would be to ignore the nature of fear and to ignore ordinary human experience to evaluate a fear as well-founded or otherwise without due regard being had to the applicant’s own past experiences.
If an applicant relies on his past experiences it is, in my view, incumbent on a decision-maker to evaluate whether those experiences produced a well-founded fear of being persecuted. If they did, then a continuing fear ought to be accepted as well-founded unless it is at least possible to say that the fear of a reasonable person in the position of the claimant would be allayed by knowledge of subsequent changes in the country of nationality. To require more of an applicant for refugee status would, I think, be at odds with the humanitarian purpose of the Convention and at odds with generally accepted views as to its application to persons who have suffered persecution … .’For reasons which will become apparent, it is appropriate to note certain comments made by other members of the Court in Chan. Mason CJ said, at 389:
‘I agree with the conclusion reached by McHugh J. that a fear of persecution is “well-founded” if there is a real chance that the refugee will be persecuted if he returns to his country of nationality. … But I prefer the expression “a real chance” because it clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring and because it is an expression which has been explained and applied in Australia … . If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.’
At 398, Dawson J said:
‘Nevertheless, for the sake of uniformity of approach I should express my preference for a test which requires there to be a real chance of persecution before fear of persecution can be well-founded. It is sufficient to justify that choice to point to the fact, as does the Chief Justice in his reasons for judgment, that it is test which has been recently expanded by this Court in another context … in a manner which is helpful in the present context. A real chance is one that is not remote, regardless of whether it is less or more than 50 per cent.’
At 406, Toohey J said:
‘The use of the adjectival expression “well-founded” must be taken as qualifying in some way the “fear of persecution”. It is hard to conceive of a fear which has no objective foundation at all as well-founded, no matter how genuine the fear might be. If the test were entirely subjective, the expression “well-founded” would serve no useful purpose. On the other hand, it is fear of persecution of which Art. 1A(2) [of the Convention] speaks, not the fact of persecution. So it is apparent that while the requirement is not entirely subjective, it is not entirely objective. Both elements are present. There must be fear on the part of the applicant and that fear must be of persecution. But what is meant by “well-founded”?
At 407, his Honour concluded:
‘The test suggested by Grahl-Madsen, “a real chance”, gives effect to the language of the Convention and to its humanitarian intendment. It does not weigh the prospects of persecution but, equally, it discounts what is remote or insubstantial. It is a test that can be comprehended and applied. That is not to say that its application will be easy in all cases; clearly, it will not. It is inevitable that difficult judgments will have to be made from time to time.’
At 429, McHugh J said:
‘Courts, writers and the U.N.H.C.R. Handbook agree, however, that a “well-founded fear” requires an objective examination of the facts to determine whether the fear is justified. But are the facts which are to be examined confined to those which formed the basis of the applicant’s fear? In [R v Home Secretary; Ex parte Sivakumaran [1988] AC 958] the House of Lords, correctly in my view, held that the objective facts to be considered are not confined to those which induced the applicant’s fear. The contrary conclusion would mean that a person could have a “well-founded fear” of persecution even though everyone else was aware of facts which destroyed the basis of his or her fear.
The decisions in Sivakumaran and [Immigration and Naturalization Service v Cardoza-Fonseca (1987) 480 U.S. 421] also establish that a fear may be well-founded for the purpose of the Convention and Protocol even though persecution is unlikely to occur. As the United States Supreme Court pointed out in Cardoza-Fonseca an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be shot, tortured or otherwise persecuted. Obviously, a far-fetched possibility of persecution must be excluded. But if there is a real chance that the applicant will be persecuted, his or her fear should be characterized as “well-founded” for the purpose of the Convention and Protocol.’These passages are of particular importance because, in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, Gummow J observed at [150]:
‘It is established by what was said by Mason CJ, Dawson J, Toohey J and McHugh J in Chan that the Convention definition of “refugee” involves mixed subjective and objective elements. In particular, there must be a state of mind, a fear of being persecuted, and a basis for that fear which is well founded. Without a real chance of persecution there cannot be a well-founded fear of persecution and the objective facts are not confined to those which induced the applicant’s fear. The view of Gaudron J in Chan that, if the experiences of the applicant produced a well-founded fear of being persecuted, “then a continuing fear ought to be accepted as well-founded unless it is at least possible to say that the fear of a reasonable person in the position of the claimant would be allayed by knowledge of subsequent changes in the country of nationality” does not represent the view of the Court in Chan.’
In Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [69], Gaudron J responded to that observation as follows:
‘Further, and as I pointed out in Chan, a fear which is well-founded because of persecution to which an individual has been subjected in the past will not, in the case of that individual, cease to be well-founded simply because circumstances have so changed that the current circumstances would not, of themselves, engender a well-founded fear in others. It is true, as Gummow J pointed out in [Eshetu], that what I said in Chan did not represent the view of the Court in that case. However, nothing that was said in Chan or that has been said in subsequent cases suggests that what I said was wrong.
To answer the question whether a fear is well-founded by reference to the current situation and without regard to persecution actually suffered by the individual concerned is to ignore the subjective aspect of the Convention definition of “refugee” and, also, the nature of fear. Further, it is to overlook what the concluding words of the definition postulate, namely, that a fear may be well-founded notwithstanding that the individual concerned is able to avail himself or herself of the protection of the country of his or her nationality.’Clearly, the Tribunal was obliged to proceed in accordance with the views of the other members of the Court in Chan. It purported to do so. It looked to all known circumstances, including, but not limited to, those which directly concerned, and were within the personal knowledge of, the applicant. In those circumstances, the views expressed by Gaudron J had no particular legal relevance for present purposes. However they did offer useful guidance to the Tribunal in two respects. Firstly, evidence of actual persecution, known to an applicant, if accepted, may qualify or exemplify the effect of the country information which is otherwise available. Almost by definition, such information will, on occasions, not reflect the whole picture. The Tribunal should be careful not to discount direct evidence from an applicant merely because it does not accord with more general country information. Secondly, where circumstances are said to have changed for the better since any incident testified to by an applicant, the Tribunal should exercise care in ensuring that such changed circumstances relate to the circumstances in which the incident occurred and recognize that change is, almost inevitably, relatively gradual, incremental and unlikely to take effect in a uniform way throughout any particular geographical region. I see no reason to believe that the Tribunal failed to understand the nature of its task, including these aspects.
I am unable to conclude that any jurisdictional error attended the Tribunal’s decision. It follows that I do not accept that the decision was so unreasonable that no reasonable tribunal could have reached it. I also see no basis for the assertion that the Tribunal failed to take account of ‘… compelling and compassionate circumstances leading to major changes beyond [the applicant’s] control’ or otherwise failed to take account of relevant circumstances.
Others matters
A number of other matters require comment. Firstly it was submitted that the Tribunal had erroneously assumed that the authorities in Sri Lanka kept accurate records and acted only on well-founded suspicions. This criticism appears to relate to the following passage in the Tribunal’s reasons:
‘While his siblings may have been suspected of terrorist activities, their actions did not rebound on the Applicant, who was not unduly harassed after they were targeted by the Army. In fact, he passed numerous security checks without arousing suspicions after those incidents. The Tribunal concludes that any records that the authorities keep about him will demonstrate that he is not linked with any group that might result in him attracting the adverse attention of the authorities.
The Applicant is not a “young” man from the North or East. He can communicate in Sinhalese, has documents and a history that demonstrate strong connections with Colombo since birth and, according to his evidence, has contacts there whom he states have vouched for him before. There is no evidence put before the Tribunal to suggest they cannot do so again if that becomes necessary. His history of encounters with the security forces lead to the conclusion that he has never been found to be connected with the LTTE and the Tribunal is satisfied that there is not a real chance that he would be suspected of connection with the LTTE in the reasonably foreseeable future. It finds that he might be stopped and questioned because he is a Tamil, but the chances of him being persecuted for that reason or because of suspected affiliation with the LTTE are no more than remote.’
As far as I can see, the Tribunal’s observation concerning the records kept by the authorities merely recognized the possibility that if there were any such records, they would demonstrate that he was not linked with any group which might of interest to them. This conclusion appears to have been based on the fact that he had been apprehended on numerous occasions and released, suggesting that the authorities had no reason to detain him. The reference to ‘… any records that the authorities keep …’ demonstrates quite clearly that the Tribunal was not assuming that such records existed.
It was submitted that the Tribunal had wrongly assumed that the authorities acted only on well-founded suspicions. I do not see that the point arises. The Tribunal, relying upon country information, identified classes of Tamils of particular interest to the authorities. Those classes included, in particular, young people from the north or east. The applicant did not fit that description. The Tribunal concluded that, although he might be apprehended from time to time for security checks, it was unlikely that he would suffer any further adverse attention. None of this suggests that the Tribunal made any assumptions other than that the security forces considered that young Tamil men from the north and east were more likely than others to be involved with LTTE. That assumption was based on the country information. I see no ground for this criticism.
I turn to the possibility of “pressure” exerted by LTTE. Contrary to a suggestion made in the applicant’s submissions that the Tribunal overlooked this aspect of the case, it is clear that it considered it. The evidence was, at best, meagre. The applicant said that in 1985, when the applicant’s family moved to Jaffna from Colombo, he and he brother were ‘… pressured to join the LTTE …’. He also said that in 1992, after he and his brother were released by the army, and after the subsequent bombing of an LTTE camp by the army, LTTE members harassed the applicant, alleging that he had given information to the army whilst in detention. He and his brother were again “pressured” to join LTTE. Finally, whilst travelling from Jaffna to Colombo in 1997, he was stopped at LTTE checkpoints as well as at army checkpoints. It is very difficult to see how any of this could amount to persecution. In any event, the Tribunal observed, concerning the possibility of persecution by LTTE in Jaffna:
‘[The applicant] has stated that he has been pressured by the LTTE in Jaffna, but if he is pressured should he return there, he can report it to the security agencies in the knowledge that they will take action to locate LTTE operatives. That is, he can anticipate that the State will protect him against persecution by the LTTE. If he remains anxious about going to Jaffna, it is reasonable that he relocate to Colombo, with which he has very significant connections and where he has previously worked.’
The Tribunal certainly assumed that the security forces would have an interest in locating and removing LTTE operatives who might be seeking to recruit in the Jaffna area. This was not unreasonable, given that they were involved in a long struggle to contain LTTE. The Tribunal found that the Sri Lankan government had been in control of Jaffna since 1996. The applicant submitted that if he were to avail himself of the assistance of the security forces in this way, it was likely that he would be subject to retribution from LTTE. It is not clear whether this fear was put to the Tribunal but in any event, the Tribunal concluded that if he had continuing concerns about his safety in Jaffna, it would be reasonable for him to relocate to Colombo. It observed that he had significant connection with Colombo and that he had previously worked there. In the outline of argument it was submitted that there was no evidence that he had substantial connection with Colombo. This is incorrect. His family moved to Colombo in 1975 and remained there until 1983. The applicant was employed in his brother’s business in Wattala, a suburb of Colombo from 1978 until, presumably, 1983. He returned to Colombo in 1997 and stayed there for some months before coming to Australia. There is nothing in the material which would justify my upsetting the Tribunal’s finding that it would be reasonable to expect him to relocate to Colombo.
It was submitted that the Tribunal erred by accepting selective country information. It is part of the Tribunal’s function to evaluate evidence. No attempt was made to demonstrate that the Tribunal’s use of the country information was in any way inconsistent with the general thrust of it. There is nothing in this ground.
Finally, I note that no attempt was made to advance the complaint of want of procedural fairness. As far as I can see, none of the other grounds raised in the application or in the submissions requires further consideration.
ORDERS
The application must be dismissed.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate:
Dated: 1 December 2004
Counsel for the Applicant: The Applicant appeared in person. Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 12 October 2004 Date of Judgment: 2 December 2004
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