Balasundram, Suresh Vamadeva v Minister for Immigration & Multicultural Affairs

[1997] FCA 577

FOR LIMITED DISTRIBUTION ONLY

CATCHWORDS

MIGRATION LAW - Review of decision of Refugee Review Tribunal not to grant protection visa - Whether the Tribunal had failed to apply the “real chance” test - Whether the Tribunal adopted a fixed set of general criteria rather than considering the individual circumstances of the applicant - Use by the Tribunal of the word “threshold”

Migration Act 1958 ss 36(2), 476(1)(d), 476(1)(e), 476(3)(c)

Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379

BALASUNDRAM v MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS
VG 222 of 1996

Before:           NORTH J
Place:             MELBOURNE
Date:              8 MAY 1997

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION

VG 222 of 1996

B E T W E E N :

SURESH VAMADEVA BALASUNDRAM
Applicant

AND

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Respondent

MINUTES OF ORDERS

BEFORE:     North J
PLACE:        Melbourne
DATE:          8 May 1997

THE COURT ORDERS THAT:

1. The application is dismissed with costs.        
   
   

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION

VG 222 of 1996

B E T W E E N :

SURESH VAMADEVA BALASUNDRAM
Applicant

AND

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Respondent

BEFORE:     North J
PLACE:        Melbourne
DATE:          8 May 1997

EX TEMPORE REASONS FOR JUDGMENT

This is an application under s 476(1) of the Migration Act 1958 in which the applicant seeks a review of a decision of the Refugee Review Tribunal made on 2 April 1996. The Tribunal affirmed the decision of the primary decision-maker, which had the effect of a refusal to grant the applicant a protection visa.

Section 36(2) of the Migration Act provides that a criterion for the grant of a protection visa is that the applicant is a non-citizen to whom Australia has protection obligations under the Refugees Convention 1951 as amended by the Refugees Protocol 1967. The Convention and Protocol provide for protection obligations for persons who are refugees. A refugee is defined as a person who:

“owing to 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.”

The applicant is a national of Sri Lanka. He is a Tamil and was born on 26 June 1959. He came to Australia on 20 December 1989 on a visitor’s visa. His claim to be a refugee was on the basis of his imputed political opinion and his ethnicity. The Tribunal rejected his claims.

APPLICANT’S CASE BEFORE THE TRIBUNAL

The applicant worked in Colombo as a marketing executive from 1980 to 1989. His claim had three aspects. The first related to his fear of persecution as a result of his involuntary involvement with the Janatha Vimukthi Peramuna in the mid 1980s. The applicant does not challenge the Tribunal’s rejection of this aspect of his claim. The second aspect was his fear of persecution as a result of his imputed association with the Liberation Tigers of Tamil Eelam (LTTE) and the third aspect was his fear of persecution as a result of his Tamil ethnicity. The Tribunal set out his claims in relation to his association with the LTTE as follows:

“In November 1993 the STF came to his home and interrogated his parents. His relatives who were staying, including his cousin from Jaffna, were also questioned. His cousin was arrested as an LTTE suspect. The family do not know the whereabouts of his cousin; he just disappeared after his arrest. The authorities said they released his cousin the day after his arrest, but the family do not believe this to be the case. The applicant believes that the authorities might impute an LTTE profile to the applicant because he was close to his cousin and often visited him in Jaffna. In response to questions by the Tribunal regarding whether or not his cousin was involved in LTTE activities the applicant stated that he might have been, but he did not know and his parents do not know either.

In February 1996 the applicant attended a public gathering organised by the Melbourne Tamil community. The purpose of the gathering was to disseminate information about the situation of Tamils in Sri Lanka. It was not organised by any particular political group, however there were LTTE banners and people were videoing and taking pictures during the gathering. The authorities in Sri Lanka know of his attendance at this gathering and he is suspected of collecting money to support their cause.”

THE TRIBUNAL’S REASONING

At the beginning of its decision, the Tribunal set out the proper approach to the expression “well-founded fear” in the definition of a refugee by reference to the High Court decision in Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379. The Tribunal recognised that “a well-founded fear” was established if there was “a real chance” that the applicant would suffer persecution if returned to the country of nationality. The applicant does not challenge this statement of the proper test.

In relation to the claims based on an imputed association with the LTTE and the claims concerned with the applicant’s Tamil ethnicity, the Tribunal analysed the situation of Tamils in Sri Lanka from about 1993. It referred to reports that thousands of Tamils were subjected to arbitrary detention solely on account of their ethnic origin. The Tribunal then recorded information that not all Tamils were at equal risk. It said:

“However, Amnesty also reported that all Tamils were not at equal risk. In its February 1994 report, Amnesty International stated at p 8:

Tamil people are particularly at risk of being arrested if they are young men, if they have recently arrived in Colombo, if they do not have a job or family in Colombo, if their identity documents were issued in the northeast, or if they are not carrying identity documents. ....

This Amnesty report supports the advice given in a position paper of the United Nations High Commissioner for Refugees dated 16 June 1993 concerning Sri Lankan asylum seekers in Europe and North America:

It is believed that a valid threshold for returnees to establish themselves without serious personal security problems in the South, would be the presence of close relatives and/or duration of previous residence and/or a past employment in these areas. (UNHCR, Geneva).”

I will hereafter refer to the February 1994 Amnesty International Report as the Amnesty Report, and to the paper of the United Nations High Commissioner for Refugees paper dated 16 June 1993 as the UNHCR paper. Then the Tribunal referred to reports of the effect of the ceasefire between the LTTE and the government in January 1995. It referred to reports that the position of Tamils was still unstable and unpredictable, especially in Colombo. The Tribunal referred to advice from the United Nations High Commissioner for Refugees (UNHCR) on 3 February 1995, as follows:

“2.  While UNHCR takes note of these recent positive developments in the general security conditions, it maintains the view that the validity of individual asylum claims should be judged on their own merits as in the past, taking into consideration the specific circumstances surrounding the case in question.”

The Tribunal then referred to the increased detention of Tamils following the breakdown of the ceasefire. It concluded as follows:

“The Tribunal accepts that Colombo is not a safe refuge for all Tamils (see for example The Time Is Not Yet Ripe, a report of a delegation of the Swiss Organisation for Aid to Refugees of April 1994). However the applicant lived and worked either in Colombo or nearby at Nattandiya on his father’s plantation all his life until his departure to Australia. His immediate family continue to live at Nattandiya where they continue to operate what the applicant described as a very profitable business. He speaks English and Singhalese and Tamil. He departed from Sri Lanka legally without any difficulty. Whilst he was once detained by the security forces, this occurred almost five years ago, and was in relation to JVP activity and he was released without charge. He was not detained again. He has never had any contact with the LTTE. He suspects his cousin might have had some involvement in the LTTE but he is not sure. He has a National Identity Card.

The applicant’s recent attendance at a public gathering in Melbourne in the absence of any other LTTE activity would only suggest a remote prospect of the Sri Lankan authorities considering the applicant had become an LTTE supporter. He has no current or previous links with the LTTE and was an active member of the SLFP, a Party openly opposed to the LTTE until his departure for Australia.

The Tribunal considers that the threshold requirements referred to by the UNHCR in their position paper of 16 June 1993 (supra) and supported by the Amnesty Report of February 1994 (supra) are still valid criteria to use in the context of the current situation in Sri Lanka. The applicant meets these threshold requirements.

Having regard to the individual circumstances of this applicant the Tribunal finds that the chance of him being subjected to persecution by the security forces on his return by reason of his Tamil ethnicity or past support for the LTTE is not a real or substantial one.”

ARGUMENTS AND CONCLUSIONS ON THE REVIEW

The applicant relied on s 476(1)(d) with sub-s (3)(c) and s 476(1)(e) in its challenge to the decision of the Tribunal. These sections provide:

“476. (1)  Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

......

(d)that the decision was an improper exercise of the power conferred by this Act or the regulations;

(e)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, whether or not the error appears on the record of the decision;

......

(3)  The reference in paragraph (1)(d) to an improper exercise of a power is to be construed as being a reference to:

......

(c)an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;”

The applicant contended that the Tribunal had failed to apply the real chance test and the decision thereby involved an error of law under s 476(1)(e). Rather than considering the individual circumstances of the applicant as required by the real chance test, the Tribunal had, it was contended, adopted a fixed set of general criteria which it applied as determinative of the case. Thus, it was submitted, the Tribunal excluded the applicant from refugee status because of “the presence of close relatives and/or duration of previous residence and/or a past employment in these areas”, as set out in the UNHCR paper and supported by the Amnesty Report. The applicant argued that the Court should read the reasons of the Tribunal as if those reasons said that, if any of the three criteria set out in the paper existed, the applicant was automatically disentitled from refugee status. Such an approach involved the argument that the Tribunal did not consider the individual circumstances of the applicant. It did not make an assessment of his LTTE association and his ethnicity, and did not evaluate the significance of this association and ethnicity as a factor in the real chance of persecution of the applicant. The argument depends upon the use of the word “threshold” in the UNHCR paper, and the two references to “threshold requirements” in the second last paragraph of the Tribunal’s reasons. It is not clear in what sense the UNHCR paper used the word “threshold”. What is clear is that the UNHCR paper set out a number of relevant factors which it regarded as eliminating personal security problems of returnees. The Tribunal used the expression “threshold requirements” in its reasons solely to identify the factors referred to in the UNHCR paper. It did not use the factors as determinative of the applicant’s claims. If it had embarked on such a process it would not have referred to the claims in relation to the applicant’s association with the LTTE at all in its concluding four paragraphs. Neither would it have referred to the “individual circumstances” of the applicant in the last paragraph. Earlier in its reasons, the Tribunal set out the applicant’s claims relating to his LTTE association and ethnicity. In the last four paragraphs of the decision, the Tribunal evaluated the evidence about the LTTE connection. It also took into account the factors referred to in the UNHCR paper and supported by the Amnesty Report. Counsel for the applicant rightly conceded that the Tribunal committed no error of law in taking these factors into account. The criticism was directed to the alleged treatment of the factors as determinative. In my view, the Tribunal did not apply these factors as determinative preconditions to the finding that the applicant was a refugee. It simply balanced all the material, including the material which UNHCR and Amnesty International had produced. Not only is this clear from the last four paragraphs of the decision read in the context of the reasons as a whole, but it is confirmed by the fact that the Tribunal referred to the UNHCR Information Note dated 3 February 1995, which expressed the UNHCR view that claims “should be judged on their own merits .... taking into consideration the specific circumstances surrounding the case in question”. Consequently, the decision did not involve the errors of law alleged. It follows from these reasons that the Tribunal did not exercise its power in accordance with a rule or policy without regard to the merits of the particular case. The challenge under s 476(1)(d) therefore also fails. The application is dismissed with costs.

I certify that this and the preceding
seven (7) pages are a true copy of the reasons
for judgment of his Honour Justice North.

Associate:
Dated:            26 June 1997

APPEARANCES

Counsel appearing for the applicant:            Mr R. M. Niall
Solicitors for the applicant:  Satchi & Co

Counsel appearing for the respondent:        Mr P. Booth
Solicitors for the respondent:  Australian Government Solicitor

Date of hearing:  8 May 1997
Date of judgment:  8 May 1997