Murugasu, Periannan v Minister for Immigration & Ethnic Affairs

NOT FOR GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA

)

NEW SOUTH WALES DISTRICT REGISTRY

)	No. NSW G.254 of 1987

)

DIVISION

GENERAL

)

BETWEEN:

PERIANNAN MURUGASU

Applicant

AND: MINISTER FOR IMMIGRATION

I	AND ETHNIC AFFAIRS Respondent

I	'	CORAM :	WILCOX J
PLACE :	SYDNEY
DATE :	28 JULY 1987

MINUTES OF ORDER

THE COURT

ORDERS THAT:

The application for review be dismissed.

The applicant pay to the respondent his costs

of the

application.

Note:

Settlement and entry of orders is dealt with in Order

36 of the Federal Court Rules.

NOT FOR GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA 1

NEW SOUTH WALES DISTRICT REGISTRY )

NO. NSW G.254 Of 1987

)

DIVISION	GENERAL	)	!	..
'. >
r :

BETWEEN:

PERIANNAN MURUGASU

Applicant

AND:

MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS

Respondent

CORAM :

WILCOX J

PLACE:

SYDNEY

DATE :

JULY 1987

I I

EXTEMPORE REASONS	'FOR JUDGMENT	,	- L
I .	..

This is an application for review

of various

decisions made on behalf of the respondent Minister for Immigration and Ethnic Affairs in relation to Mr Murugasu

Periannan, a Sri Lankan national

of Tamil extraction.

There are two decisions under

attack.

The first of

them is the decision which was made

by Mr B W Sant, a senior

immigration inspector of the entry section of the Department of Immigration and Ethnic Affalrs at Sydney, when he refused

to issue to the applicant an entry permit on 28 April 1987.

It appears that the applicant arrived on a flight from

Singapore on that morning, holding a ticket to proceed from

Sydney to Nadi, F1]1.

The ticket was wrltten by Continental

Airlines. However, Contlnental Airlines indicated to immigration officers that it was not prepared to take the

applicant to Fi]i

because the Fijian authorities had indicated

that he would not be allowed entry.

Mr Sant interviewed the

applicant who stated that he was a seaman.

He produced a Sri

Lankan seaman's record book and a certificate of discharge

: .,

which showed that he had been a seaman up until 9 June 1983.	l
I ,.

Mr Periannan Informed Mr Sant that he was to sign on to

a ship

known as the "Lucky Star" at Nadi, and he produced a letter

from a company called McLarens Shipping Limited which

supported the statement.

I '

Mr Sant gave	evidence before me. He indicated that	!
L ..

he had some difficulty in communication with Mr Periannan,

because of a language problem, but that he had the services of

an interpreter over the telephone which assisted to some

extent.

Mr Sant said that he spoke

to Mr Periannan for about

half an hour and that Mr Periannan's primary concern was to

continue his journey to Fijl in order to join the "Lucky

Star". It was put to Mr Sant that Mr Perlannan had told him that once he was in Fiji he

proposed to obtain travel

documents to Australia, but Mr Sant

denied that this was ever

said.

He did agree that Mr Periannan, when told of the

problem about going to	Fiji, asked if he could stay in
Australia.

Mr Sant gave a statement under	s.13 of the	j r
I

Administrative Decisions (Judicial Review)

Act 1977 in

! ,

connection with his decision to refuse an entry

permit. In

para.12 of that statement he says that he decided not to grant

an entry permit

or temporary entry permit

and that he decided

to refuse entry; those actions being taken with the knowledge

that UTA would

be endeavouring to take the applicant to a

port

at which he could joln the “Lucky Star“. The airline UTA had

brought Mr Perlannan to Sydney.

Mr Sant goes on in

para.13 to

say that the station manager

at UTA was verbally advised

of a

decision to refuse entry and he undertook to examine

on the

followlng day the possibility of assisting the applicant to join the “Lucky Star”. Mr Sant decided that the applicant should be held in custody, and he gave appropriate directions

pursuant to s.36A(3) of the Migration Act 1958. Apparently Mr Sant thought that the applicant would need to be held for only

a short time because

he arranged for him to be taken to

Maroubra police station, which

is relatively close to

Kingsford-Smith Airport, rather than to the Villawood

H stel.

In the event, there was delay, and two days later Mr Periannan was moved to Villawood where, I understand, he remains.

The challenge that was made to Mr Sant’s decision

I ’

based upon the proposition that Mr Sant should have taken Into

account that Mr Periannan desired refugee status

in Australia.

It is said that this would have been relevant

to his decision

as to a temporary entry permit because it would have been	L ,.	.
reasonable for him to issue a temporary entry permit pending

cons

ideration of an application for refugee status.

The

prob llem about the submission is that Mr Sant's uncontradict ed evidence is that at no stage did Mr Perlannan ask for refugee

status.

Nor, it seems, did he press any application to be

allowed to remain in Australia.

He certainly evlnced some

interest in this possibility if he could not go on to join the

"Lucky Star"; but it seems to have been accepted by all

concerned at the time of the decision that there was a

prospect of going on to the "Lucky

Star".

I do not think that Mr Sant's decision can be

criticized on the basis that he should have taken into account the possibility that there would be an application for refugee

status and, on

that basis, that he should have decided to

issue a temporary entry permit. On the contrary, my view is that Mr Sant acted in accordance with the provisions of s.36A and, if I may say so, in accordance with the dictates of

common sense. He took the practical course of endeavouring to

arrange for Mr Periannan to be taken to his ship and,

in the

meantime, directed that he be held in custody for a short

time.

I do not see any basis for the attack on that decislon.

The second decision which 1s under attack is a

decision by the delegate of the Minister,

Mr Dennls

Richardson, that the applicant does not have the status of

refugee within the meaning of the Geneva and New York

Conventlons. Thls is a decision which apparently followed a

decision to like effect

by the interdepartmental committee

known as the

Determination of Refugee Status Secretariat. As

I understand the scheme of the Migration Act, there is no

provision within that legislatlon for determination of refugee	..	_ .
status, and it seems extremely doubtful whether a decision to

grant or to

refuse refugee status is a decision under an

enactment. The importance of a determination that a person is a refugee 1s that this is a major aid to that person in making out a case for a grant to him or her of an entry permit under

s.6A(l)(e) of the Act. That paragraph empowers the grantlng

of an entry permit to a person in relation

to whom there are

strong compassionate or humanitarian grounds for the grant of

the permit.

Of course, there may be cases where the DORS

Committee, as it is generally called, does not recognize the applicant's status as a refugee but, nonetheless, the Minister or his delegate, for reasons whlch seen good to one of them,

declde to grant an entry permit.

There may be other cases,

although I suppose that they will be much more rare,

where the

DORS Committee does recognize refugee status,

but,

nonetheless, the application for an entry permit is refused.

However thls may be, the position in the present case is that on 4 June 1987 the

solicitors for the

applicant, who

have acted for him throughout the whole episode, wrote to the

Minlster a letter which sought, amongst other things, "a

statement of findings and reasons for the decision of the

Determination of Refugee Status Committee contained in a	l '
letter dated 2 June 1987 refusing our client refugee status in Australia". Mr R E Penkethman, a delegate of the Minister who had apparently succeeded Mr Richardson in that position,

obliged by issuing a statement of reasons on 12 June

1987.

I '

This statement refers

to decisions made by Mr Richardson, but

obviously in the context of

the DORS Committee's

consideration. However,

it is Important to observe that the

statement does not purport to be a statement of reasons for refusing an entry permit or for the making of a deportation

order. No doubt one reason for this is that the request only related to the decision to refuse refugee status. The other

reason is that there has been no formal refusal

of an entry

permit and there has been

no deportation order.

I gather that the respondent takes the view that, as

the applicant has

at all material times been

held in custody

pursuant to directions under 36A of the Act, he has

not yet

"entered Australia", within the meaning of that Act;

and

consequently no deportation order

is required for his removal.

Although a request was made

by the solicitors for the grant of

an entry permit under

s .6(2)

of the Migration

Act, there has

been no response,

one way or the other, to that request.

Consequently, the only decision under present challenge

relates to the denial of refugee

status.

I am not concerned

with any broader decision.

Still less am I concerned with any

inference that might

be drawn as to matters which might have

been taken into account in

relation to a broader decision but

which were not relevant to the decision about refugee

status.

These remarks are important because

a major feature of the

argument on behalf of the applicant has

been to complaln of

the failure of Mr Richardson to take into account various

matters said to be relevant in relation to Mr Periannan's

ultimate fate.

In the further and better particulars, which were filed on 2 4 July 1987, six matters are referred

to as not

having been taken into account. They include a policy issued

by the Department, identified as

No.1330.

This policy seems

to have been deslgned to achieve two

purposes: first, to set

I .

out the proper demarcation of responsibilities between the DORS Committee on the one hand and the Department on the other

in processing claims for refugee status

by Sri Lankan

applicants: and, secondly, to indicate that applications for resident status from Sri Lankans are to

be treated

"sympathetically on a case by case basis".

It is said that Mr

Richardson should have taken into account this

policy. But

the policy is plainly directed to declsions made

Departmental officers, in that capaclty, in

regard to the

granting of entry permits rather	than to determination of any
question of refugee status.

Secondly, it is said that Mr Richardson failed to

take into account various articles emanating from Amnesty

International and sent to the secretary of the DORS Committee

I ,.

by the applicant's solicltors on 2 2 May 1987.

It is true that

L. .

the reasons glven

by Mr Penkethman do not refer to those

artlcles, although It

is obvious from the reasons that the

relevant letter was received.

Its contents are discussed.

However, in para.7 of his affidavlt Mr Warwick Young,

Acting

Director of DORS, says that the members of

the Committee who

discussed the application had, within their knowledge

and

available to them, "material circulated

to the Committee by

8 .

Amnesty International and varlous publications dealing

generally with concepts

of refugee and persecution wlthin the

, -

terms of the Unlted Nations Convention

relating to the status

of refugees". Whether or not the particular artlcles were

read, I think it 1s clear from Mr Young's affidavit that the

members of the Committee who considered the applicatlon were

aware of the situation in Sri Lanka.

It should be emphaslzed

that there is nothing in the relevant articles which deals

directly either with the applicant or with members of his

family and there is nothing in those articles which clearly

demonstrates a pattern of "persecution", to use the

word

included in the definltlon of "refugee" under the

international Convention, as distinct from a pattern of

communal vlolence in which incidents have occurred in which

many Tamils have been killed or injured.

I do not wish to be

thought to underrate the significance of the picture painted

in the Amnesty Internatlonal articles.

I merely make the

point that there is no reason to believe that thls picture was

unappreciated by the members of the DORS Committee.

The other matters which I referred to in connection with this first ground need not, I think, be dlscussed in any

detail.

One of them involves a failure to make

further

inqulries, and I will return to that. Another is the

suggestion that the Committee erred in failing to take into	. .1
I .
.,
account that an undertaking that had been given to the

applicant by the Departmental officer	who interviewed him on
his first arrival had been breached.	There is no evidence of

any breach of that undertaking.

It is also said that the

Committee failed to take into account that the United Nations that the applicant should be consldered ellgible under present

policy relating to Sri Lankans.

To put this matter in its

context, I observe that, at the last of the

three meetings at

which Mr Periannan's case was considered by the Commlttee, and

after each of the members of the Committee, that

is the

representatives of the four

constltuent departments, had

expressed the view that the application for grant of

refugee

status should be refused, the observer representing the United	!. .
Nations High Commissioner for Refugees said that he had nothing to add to the previous assessments but that hls Commissioner would hope that the applicant would be considered
eligible under the present policy relating to Sri Lankans. I

can well understand this hope but it had nothing to do

with

the decision as to eligibility.

It may have something to do

with any subsequent decision as

to the course to be taken in

relation to the applicant's application for an entry permit

and as to any action to remove him from Australia, but that is	!
a matter for the Minister to consider.

Finally, it is said that the Committee erred by

failing to take into account that the

appllcant had entered

Australia, within the meaning of the Act,

because certain

legal procedures had not been observed.	This ground was not
pressed.

10.

The second main ground of attack

is a complalnt of

procedural unfairness in connection with the consideration	of
the application by the DORS Committee; and, I assume, the

argument runs by extension to the consideration	by Mr
Richardson.

I do not propose to set out

In any detail the course

of proceedings before the Committee. I think that this is

unnecessary and, from one point of view, undesirable. It 1s

enough to say that on his flrst arrival in Australia the

appllcant was interviewed by a Departmental officer at length.

He gave her a considerable amount of information about his

llfe history, his family

and his reasons for not

wishing to

return to Sri

Lanka.

The matter was submitted to

the DORS

Committee which felt that, on

the basis of the applicant's

statements, the matter was

a borderline case.

It was then decided

to have further inquiries made

Sri Lanka. For that purpose, the Australian High Commission in Colombo was asked to ascertain various facts.

I .

It seems to

me that the matters about which the Australian nigh Commission

was asked to make inquiries were the obvious matters

to be

further considered in connection with the appllcation.

They

were matters about which there was likely

to be little

difflculty In ascertaining the position

a d they were matters

of importance.

Information was obtained from

the Australian

High Commission.

The Australian High Commission indicated the

sources of its responses.

The identity of those sources has

11.

not in all cases been revealed to the applicant;

although at

an earlier hearing, and on my

suggestion, the documents

were

shown to counsel for the applicant. I think it is enough to say that the sources appear to be reliable and I can see no ground whatever for crlticizing the adequacy or skillfulness of the Inquiries carried out by the Australian High Commlssion

In Colombo.	i
. -.
b .
The DORS Committee considered this information. It plainly felt that the new information put a somewhat different
complexion upon the facts, as they had been given by the
applicant. It is obvious, reading its minutes, that the	,
Committee was minded to take the view that the application for grant of refugee status should be denied. But it did not make a final decision. On the contrary, the secretary of the

Committee wrote to the solicitors for

the applicant a letter

which accurately summarized the information obtained from

Colombo and invited a response.

The solicitors did respond

and they gave explanations in regard to a number of matters.

They did not suggest any further inquiries ought to be made.

The DORS Committee considered the solicitors' letter and came

to the conclusion that the application should be refused.

see no warrant for criticizing the proceedings of the contrary, I would regard the course which was taken as being

eminently fair, firstly, in

having independent Inquiries made

by competent people upon the salient aspects of the

applicant's claims and, secondly,

by givlng to the applicant,

through his solicitors, the opportunity of responding to the

Information so obtained.

12.

l -

Considerable attentlon has been paid in the

argument

before me to the question whether there was really any

inconslstency between aspects of the information obtalned in

Colombo by the Australian High Commission and the statements

made at one or more times by the applicant. Subject only to

the matter of reasonableness, to which I wlll come in a

moment, these were entirely matters for the DORS Committee to

determine. Counsel has put everything which could be said, in my opinion, in regard to the views expressed by the DQRS

Committee. But I cannot see that there is any basis for the

view that the Committee was unfair in the way in which it

handled the matter.

Nor do I think that the ultimate conclusion of the Committee was unreasonable, in the sense in which that word is

used in s.5(2)(g)

of the Administrative Decisions (Judicial

Review) Act.

The critical question for the Committee to

determine was not whether

there had been incidents of vlolence

in Colombo

affecting members of the Tamil community.

Regrettably there was no question about that.

Rather the

question was whether the applicant fell within the definitlon of "refugee" in the relevant international conventions. That definition requires determination of the issue whether the

applicant was outside Sri Lanka, and unable or unwilling to	, .,
return, because of a "well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a

particular association, group

or political opinion".

13.

The claim, of course,

is that Mr Periannan

had a

well-founded fear of being persecuted because he was a member	r.
! '
of the Tarn11 community. It is important to note that the

definition requires consideration

not only of the subjective

question whether the particular applicant has a fear,

but also

of theobjective question whether

that fear is well-founded.

Moreover, the fear must be one of being "persecuted", for a

particular reason.

The word "persecuted" suggests a course

systematlc conduct aimed

at an lndivldual or

at a group of

people.

It is not enough that there be fear of being involved

in incidental violence

as a result of

civil or communal

disturbances.	I agree with counsel for the applicant that it	i
.. .

is not essential to the notion of persecution that the

perscution be directed against the applicant as an individual.

In a case where

a community is belng systematically harassed

to such a degree that the

word persecution is apt, then I see

I. .

no reason why

an individual member of that community

may not

have a well-founded fear of

being persecuted.

Questions of degree are

involved, both as

to the

extent of the harassment which exists

in a particular case

and

as to the

continuity of that harassment,

so as to answer the

question whether It amounts to

persecution. Concluslons of

fact have to be made.

I do not wish to be thought to minimize

the problem in Sri Lanka, as

it appears from the evidence

and

from one's general knowledge

of the position, nor to minimize

what must be the devastating effects upon individuals

who find

themselves caught up in tha violence. But whether or not the harassment and violence which has undoubtedly occurred can

14. I

properly be regarded as persecution of the Tamll community

as to create a well-founded fear of persecution

in Individual

members is something which must be determined upon the basis

of the whole of the Information available. No information has

been put before the Court

o enable me to say that a negative

answer to that questlon is an answer so unreasonable that no

reasonable person could have reached	it.	The members of	the	..
!.,

DORS Committee -- and I interpolate that the Committee

includes a representative

of the Department of Foreign Affairs

-- were well aware

of the nature of the problem in Sri Lanka,

that the violence particularly affected and, perhaps

was

. .1

particularly directed to, members

of the Tamil community and

that the appllcant was himself a Tamil.

It may be that

dlfferent people would take different vlews as

to whether what

I '

was going on

amounted to persecution

and whether Mr Periannan

had a well-founded fear as to his position if he returned. It

happens that all members of the Committee appear

to have been

of the one view.

I certainly do not think that this 1s one of

those rare cases in which the Court can say that

conclusion of fact of	the decision-maker was bad in law for	i
i
unreasonableness.

Under those circumstances

it seems to me that each of

the grounds of attack upon the conclusion reached

by Mr

Richardson, in the light of the DORS Committee decision, must

L .

fail.

The application for review must be dlsmissed.

I dismiss the application and I order that the

applicant pay the respondent's costs.

15.

I certify the fourteen (14)

precedlng pages to be a true copy of

the Reasons for Judgment of

, his Honour Mr Justice Wilcox.

~ssociate

/-,-p?G2&-

Date:

3 August 1987

Counsel for the

Applicant:

Mr G Scragg

Solicitors €or the Applicant:

John Bettens

& CO

Appearances for the Respondent:	Mr S Daley, solicitor
appeared on 14 July 1987
Mr D M Yates, counsel
appeared on 28 July 1987

Solicitors	for	the	Respondent:	Australian	Government
Solicitor

Date(s) of hearing:

14 and 28 July

1987

[1987] FCA 414

28 Jul 1987