Logenthiran, Selvarajah v Minister for Immigration and Multicultural Affairs

[1998] FCA 518

FEDERAL COURT OF AUSTRALIA

IMMIGRATION - Application for reviw of decision of Refugee Review Tribunal affirming decision to refuse protection visa - Sri Lanka - whether young Tamil at risk of persecution by Sri Lankan forces or LTTE - whether reasonable to expect Tamil to live in Colombo - what is persecution - whether error in approach.

Migration Act 1958 (Cth) - ss 430, 476
Refugees' Convention - Article 1A(2)

Eshetu v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 300
Kirushantan Paramanathan v Minister for Immigration & Multicultural Affairs (unreported, Davies J, 15 May 1998)

Thirmnavukkarasu v Canada (Minister of Employment and Immigration (109 DLR 4th) 682

SELVARAJAH LOGENTHIRAN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
NG 916

DAVIES J
15 MAY 1998
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 916  of   1997

BETWEEN:	SELVARAJAH LOGENTHIRAN APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		DAVIES J
DATE OF ORDER:		15 MAY 1998
WHERE MADE:		SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT:

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
NEW SOUTH WALES DISTRICT REGISTRY	NG 916 of 1997

BETWEEN:	SELVARAJAH LOGENTHIRAN APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	DAVIES J
DATE:	15 MAY 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This application seeks orders of review with respect of a decision of the Refugee Review Tribunal ("the Tribunal"), which affirmed a primary decision not to grant a Protection Visa to the applicant, Selvarajah Logenthiran, who had sought such visa on the ground that he was a refugee from Sri Lanka. 

The applicant was a young Tamil man from northern Sri Lanka.  He claimed refugee status having regard to the definition of "refugee" in Article 1A(2) of the Refugees' Convention which defines a refugee 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 formal habitual residence, is unable or, owing to such fear, is unwilling to return to it."

Counsel for the applicant, Miss Elizabeth Wilkins, submitted that there were reviewable errors in the Tribunal's decision of 7 January 1998, falling within the terms of s 476 of the Migration Act 1958 (Cth). Relevant terms of that section 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.

(a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

...

(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;

...”

The Tribunal described the relevant facts of the applicant's life in northern Sri Lanka as follows:

"As a child he had lived at Karainagar close to the Liberation Tigers of Tamil Eelam (LTTE) camp.  He had been coerced to stand sentry for the LTTE on three or four occasions.  At the time when the Indian Peace Keeping Force was in Sri Lanka he had been beaten by them when they wanted to find out whether the household was supporting the LTTE.  In 1990 he and his cousin were going to market when the town was bombed and his cousin killed.  In 1991 the family evacuated to Jaffna where the LTTE attempted to persuade students at his school to join them, although the applicant did not, because having been present at his cousin's death he wanted to avoid violence.  The LTTE, however, had forced him and other students to dig bunkers and fill gunny sacks on several occasions.

During the 1995 ceasefire the applicant went to Colombo to lodge a Special Assistance Category to migrate to Australia.  To enable him to obtain a pass from the LTTE to leave Jaffna his mother sold her jewellery and paid one lakh of rupees.  He lodged an application in March.  While in Colombo the house in which he was staying was raided by the police, he was arrested and beaten and 30,000 rupees paid for his release.  He was taken to the police station on a second occasion, beaten and accused of having links with the LTTE.  20,000 rupees were paid for his release.  He had to move to another house and was arrested once more, in May, but soon after put in a jeep from which he was pushed.  He was later told that a friend of the family, a bank officer, had prevailed upon his manager to secure his release.  A Christian priest had assisted him to leave for Vavuniya.

...

On 30 October the LTTE announced that the army was coming and that people should leave.  He managed with difficulty to go to Nedunkerni where his father was living.  The town was under LTTE control but despite this his father continued his work there in the Additional Government Agent's Office.  When the applicant contracted typhoid he was taken to Vanuviya hospital.  After his release he was accosted by two former classmates who were members of Peoples Liberation Organisation of Tamil Eelam (PLOTE).  The former classmates wanted to know the whereabouts of his cousin Vimalarajan with whom they had all attended English classes in 1988, and who had been taken from the class by the LTTE and later given arms training.  The applicant was attacked soon after by five PLOTE members and taken to hospital,

After his discharge he was taken back to Nedunkerni where the LTTE approached him to join their auxiliary force.  He was taken that week to an LTTE camp and given training in treating wounded soldiers and providing assistance to fighters.  He was also taught how to throw grenades.  He was required to stand sentry for the LTTE about twice a week until April 1997.

At this time the LTTE told him that they wanted him to join them full-time.  In mid-April he went into hiding and fled to Vavuniya guided by a friend of his father whom he called `Siva uncle'.  En route he was arrested by the army who beat him during interrogation, before he was sent to a refugee camp in a government-held area.  Although he was questioned about his LTTE connections he was not beaten.  `Siva uncle' spoke to the police officers and gave them money to let him leave the camp.

`Siva uncle' took him to Colombo where he was again arrested by the police and kept for a week in custody, during which time he was beaten.  `Siva uncle' again paid for his release, this time 25,000 rupees.  `Siva uncle' then put him in touch with an agent who went with him to Hong Kong.  In Hong Kong the agent gave the applicant a boarding pass in an assumed name, with which he boarded the plane to Australia."

The following passages set out the crux of the Tribunal's decision:

"There is no evidence before the Tribunal as to whether his treatment at the hands of the LTTE was markedly different to that experienced by other young Tamil men in his area, and was not serious enough to amount to persecution.

...

The Tribunal finds credible the applicant's claims tht while he was in Colombo he was taken by the authorities for questioning three times, and that he may have been ill-treated while in custody.  ...  DFAT cable CL463 Sri Lanka: Human Rights Update: Tamils in Colombo, 24/1/97 reports that `as a consequence of the security threat coming from a Tamil Nationalist militant organisation, Tamil people in Colombo are subjected to a greater degree of surveillance and suspicion than non-Tamil people' but that `provided that they are properly conducted, this does not amount to harassment or physical danger', and that `this does not amount to officially sanctioned discrimination or harassment of Tamil people as a group'.  It also commented that there had been `very few reports of serious mistreatment in detention in Colombo' in 1996 owing to improved police practices and a greater demand for police accountability.  The Tribunal finds that given these recent improvements in police conduct, the chance that ill-treatment in custody will recur is remote.

...

There is no evidence to suggest that it would be unreasonable for the applicant to relocate.  The Tribunal finds that the applicant would be able to relocate within his region in Sri Lanka.

...

On this evidence and the applicant's claims of relatively limited LTTE involvement the Tribunal finds that in the applicant's case his profile is not such as to be of interest to the Sri Lankan authorities and that his fear of persecution by the authorities on arrival at Colombo airport is not well-founded.

In sum, the Tribunal finds that not only when considered individually the applicant's claims do not amount to a well-founded fear of persecution, but also when considered cumulatively."

The task of the Court is to identify whether any reviewable error as specified by s 476 of the Migration Act has occurred, in particular, whether the Tribunal's process of reasoning involved an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found within the meaning of s 476(1)(e). Many of the submissions of Miss Elizabeth Wilkins, counsel for the applicant, seem to be based on the premise that, having regard to the facts of the case, the applicant was entitled to be recognised as a refugee and that the Tribunal must have fallen into an error of law in its approach to the question before it and, moreover, that the Tribunal failed to explain in any cogent fashion why the applicant's refugee status was not recognised. I do not draw from the reasons of the Tribunal the inferences of error which Miss Wilkins has asked me to draw. The Tribunal's decision appears to me to fall within the general pattern of decision-making which the Court sees. The reasons for decision should not be approached too critically. Particular sentences in the reasons for decision which, if read on their own, might be the subject of criticism, should be read in their context, having regard to the overall thrust of the views expressed by the Tribunal.

The facts of the present case are very similar to those in Kirushantan Paramanathan v Minister for Immigration & Multicultural Affairs in which I have this day delivered reasons for judgment.  As the facts and issues are similar, I adopt the general course of reasoning I there expressed and need not repeat it.

The crux of the Tribunal's finding is that the applicant was not at risk of persecution from the Sri Lankan Armed and Security Forces provided he remained outside the areas controlled by the LTTE.  The Tribunal accepted the view which had been expressed in material before the Tribunal, particularly in the cable from the Department of Foreign Affairs & Trade of 24 January 1997, cable CL463, that Tamil people were not at risk of persecution in Colombo though they were subjected to a greater degree of surveillance and suspicion than non-Tamil people.  This was a decision of fact which the Tribunal was entitled to come to on the material before it. 

For my own part, I would have thought that the finding of the Tribunal that:  "Chance that ill-treatment in custody will occur is remote.", in relation to a young Tamil such as the applicant, was unjustified.  There was much in the material before the Tribunal in addition to the evidence of the applicant to show that the detentions, beatings, torture and other violations of human rights still occur in Sri Lanka, including in Colombo. The risk increases for persons such as the applicant who, in Colombo, has no relatives with whom he could be safely identified, no employment and no home.  In the case of Kirushantan Paramanathan, I cited the report of the British Refugee Council of February 1987 that, inter alia:

"Despite the attempts by the government to promote human rights, the culture within the Sri Lankan security forces remains suspicious of Tamils - in particular young males, although all Tamils, whether male or female, young or old, are at risk.  That Tamils should come under suspicion because of the actions of the LTTE is understandable.  What is concerning is the continued use of detention without trial, and in contravention of the Emergency Regulations  of torture to extract confessions, often in language not understood or spoken by the signatory  and of extrajudicial executions which are linked to the security forces.  While there has been a systematic reduction in human rights violations, particularly against the Sinhalese population, there continues to be human rights violations in Colombo, particularly against Tamils, which the government appears to be unwilling or unable to prevent.  It is for this reason that Colombo should not be assumed to be safe for Sri Lankan Tamils." (emphasis added)

Young male Tamils who are without connections in Colombo who can verify their identity necessarily attract the attention of the Security Forces as evidence of the applicant showed..  That was the basis of the decision in Thirmnavukkarasu v Canada (Minister of Employment and Immigration (109 DLR 4th) 682.

However, even if the Tribunal's decision on the point was unsound, and there was some material supporting it, that in itself would not justify the making of an order of review.  It is necessary that the Court be satisfied that the Tribunal erred in its interpretation of the applicable law or erred in applying that law to the facts as found.  I cannot draw that conclusion from the making of the finding of fact to which I have referred.

Miss Wilkins submitted that the Tribunal, rather than determining whether there was a fear of  persecution and whether that fear was well-founded, considered the matter basically having regard to the facts as set out in cables received from the Department of Foreign Affairs & Trade and did so without considering the likelihood of persecution based upon the individual experience of the applicant.  I understand the point of principle put by Miss Wilkins.  It was the point of principle which persuaded Burchett J and myself that orders of review should be made in Eshetu v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 300. However, the circumstances in Sri Lanka are such, it appears to me, that it is open to debate as to whether the ill-treatment such as occurs in Sri Lanka amounts to persecution and that there can be differing views on that point. Insofar as I am aware, in most cases in the United Kingdom and in this country, the decisions taken are similar to that taken by the Tribunal in the present case. I cannot draw the inference of error of interpretation as was drawn in Eshetu.

It was submitted by Miss Wilkins that the Tribunal erred in law as to what may constitute persecution for the purposes of the Convention. Miss Wilkins referred to evidence given by the applicant that the LTTE had required him to stand sentry for them, to dig bunkers and to carry gunny sacks for them and had attempted to persuade him together with boys in his class to join them.  In my opinion, it was open to the Tribunal to find that these actions did not have in them the element of harm which is required for the concept of persecution.  The LTTE was, of course, the governing authority in the region.  It was fighting to establish a separate State.  Understandably, the LTTE expected local Tamil males to assist it in many of the tasks which did not involve fighting and indeed encouraged those of military age to join their Forces.   I cannot draw from the Tribunal's finding on this aspect that there was any error in its understanding of applicable law. 

Miss Wilkins referred to the fact that there was no evidence that the applicant's treatment was markedly different to that experienced by other young Tamil men.  Miss Wilkins submitted that this involved an error of law as it was not necessary under the Convention that the claimant be singled out.  However, the point  that the Tribunal made was relevant to two issues:  one, as to whether the LTTE intended to harm the applicant and the other whether there was any special relationship between the applicant and the LTTE as may have brought him particularly to the attention of the Sri Lankan Armed or Security Forces.

Miss Wilkins submitted that the Tribunal erred in its understanding of persecution when making the finding with respect to the applicant's likely treatment by the Security Forces in Colombo.  However, I have already dealt with this matter in my reasons in Kirushantan Paramanathan and I need not say any more about it. 

Miss Wilkins submitted that the Tribunal misunderstood the concept of relocation.  However, as the Tribunal found that the applicant was not persecuted by the LTTE and that the applicant would not be likely to suffer ill-treatment in Colombo, there is no basis on which the Court could infer that the Tribunal misunderstood this issue.

Miss Wilkins also raised a number of procedural points arising under s 476(1)(a) of the Migration Act. It was said that the procedure was not fair and just and was in breach of s 420 of the Migration Act in that the Tribunal did not make the applicant aware of the conditions in Sri Lanka by drawing his attention to this material and giving him an opportunity to respond.  However, the applicant in the present case was represented by Mr Leonard Karp, a solicitor  who was fully familiar with the issues to be dealt with and who himself supplied the Tribunal with a great deal of information bearing upon the issue as to whether or not there was persecution of Tamils by the Armed and Security Forces in Sri Lanka.  I do not see any unfairness in the manner in which the proceedings were conducted. 

Mr Karp has deposed on affidavit that he was not aware of certain material referred to in the Tribunal's decision and that, had he been aware of it, he would have given answers to the Tribunal with respect to matters raised therein.  I have looked at the material referred to by Mr Karp in his affidavit.  It seems to me that none of the material referred to was of any special significance but rather formed part of the general body of material in which different people have expressed different views.  The most important information relied upon by the Tribunal, Cable CL463 from the Department of Foreign Affairs & Trade was not one of the cables of which Mr Karp was unaware.  I do not consider that the Tribunal was bound to bring to Mr Karp's attention every piece of material to which it had regard or, indeed, that any of the answers which Mr Karp said he would have made would have affected the result.

It was finally submitted that the Tribunal failed to give adequate reasons for its decision. However, the Tribunal did make its findings clear and it supported its findings by referring to material it relied upon. For example, although in the paragraph in which it found that the chance of ill-treatment of the applicant in custody was remote there was little support for that finding, the Tribunal later referred to other material on the point such as a report which considered the situation of the 550 persons who had been expelled from Switzerland since 1995. That report disclosed that only 27 of the 550 persons had been arrested on entry to Sri Lanka or shortly afterwards and that the majority had been detained for only 24 to 48 hours for identity checking. The Tribunal also noted that the Swiss Federal Refugee Office had not received information of maltreatment suffered by repatriated asylum seekers at the hands of the Police. In my opinion, the Tribunal made the basis of its findings clear. The Tribunal was not required to discuss every piece of evidence for or against the issue. In my opinion, the reasons complied with the requirements of s 430 of the Migration Act.

For these reasons, I am not satisfied that there was any reviewable error in the Tribunal's decision.  The application must be dismissed with costs.

I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies

Associate:

Date:               15 May 1998

Counsel for the Applicant:	Miss E Wilkins
Solicitor for the Applicant:	Mr L Karp, McDonells Solicitors
Counsel for the Respondent:	Mr DH  Godwin
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	23 April 1998
Date of Judgment:	15 May 1998