Muthulingham Sivanantharajan v Minister for Immigration, Local Government & Ethnic Affairs

[1989] FCA 867

IN THE FEDERAL COURT OF AUSTRALIA	) )
GENERAL DIVISION	1 No. G 95 of 1989
1
NEW SOUTH WALES DISTRICT REGISTRY )
1

- Re: MUTEULINGRAM SIVANANTHARAJAN

Applicant

And: MINISTER FOR IMMIGRATION, LOCAL

GOVERNMENT AND ETHNIC AFFAIRS

Respondent

CORAM: Einfeld J.
DATE : 3 March 1989

PLACE: Sydney

L d EX-TEMPORE JUDGMENT

The modern tragedy of Sri Lanka has created enormous suffering for its people and great sadness to its friends in Australia. A charming and delightful country with a productive and attractive people is being rent asunder by pressures from within and perhaps from without. Their friends outside feel helpless in trying to render assistance.

However, the question in this case is whether Australia and its people	the situation that exists when people who are undoubtedly suffering to	can, consistent with its own laws and interests, do anything to assist
one extent or another from the current circumstances that exist in Sri Lanka, arrive on our shores and seek refuge here.
The applicant arrived in Australia on 11 December 1987 with a Sri Lankan passport and an Australian visa issued by the Australian High Commission
in Singapore. The visa was obtained by the supply of information and
documents to the High Commission which were virtually entirely false. However, it is to the credit of the applicant that soon after his

L4 arrival in Australia he did not seek to maintain the ruse or pretence which had enabled him to land on these shores and to the credit of the respondent Minister for not taking any point in these proceedings at any stage that the Court make its decision on the basis of the falsities which produced the visa.

As it turns out, the applicant was not given a temporary entry permit upon arrival in Australia, once the truth had emerged, but was instead taken into custody under section 36A of the Migration Act. Eleven days after his arrival whilst in custody at the Villawood Detention Centre, on 22 December 1987 the applicant applied for refugee status

position and the position of his family but the committee of the	In the usual way he supplied a considerable amount of detail of his own	Immigration Department and other departments which examines such applications, familiarly known as the DORS committee, refused the application on 7 January 1988, or rather recommended its refusal, when it found that he did not qualify as a refugee. Accordingly, the delegate of the Minister on 19 January 1988 refused refugee status to the applicant.
The applicant remained in custody through 1988 and in , about August/September, with the support of a number of people in this country, submitted for reconsideration by the W R S committee the application for refugee status. The committee considered it on 16 September 1988 but confirmed their previous recommendation. Accordingly, on 9 Oct ber 1988 refugee status was again refused by the
delegate of the Minis' er. P

L' Conscious of the circumstances which did or could exist in Sri Lanka at the relevant time, the Minister suspended all Sri Lankan deportations or forcible removals from Australia pending the presidential elections in Sri Lanka due and held on 19 December 1988 and the subsequent parliamentary elections which were held on 15 February 1989. Despite some disturbances of a civil kind that occurred in both of the campaigns, it was reported to the Minister that, generally speaking, the position in Sri Lanka was reasonably calm. t

Accordingly, the Minister decided on 23 February 1989 that the applicant

L should depart Australia. On 24 February an attempt was made to place him on an aeroplane bound for Singapore but this was stopped by an order

of the Court on that day pending an application for judicial review of	the Minister's decision. That application was filed on 28 February
1989.
Earlier today in an interlocutory extempore judgment, I related the circumstances under which the matter came before the Court including the actual form of the application for judicial review on the one hand and the substance of the mattter which the parties were really seeking to argue on the other. I will not repeat those circumstances here. It will suffice to say that as the matter was argued, it was not, as was contained in the original application for judicial review, based upon the Minister's decision to refuse a temporary entry permit, but rather, as was the fact, an application to review the Minister's decision that there were no facts brought to his attention which could possibly provide the applicant with a ground for permanent residence such that he ought to consider the grant of a temporary entry permit to permit the relevant provisions of the law under section 6A of the Migration Act to

i- be met.

These provisions include the need for an application for permanent residence on the ground of refugee status or on the humanitarian or compassionate grounds which are the two relevant grounds here only to be made by people with a temporary entry permit. The Minister's decision was not in fact, although it was in form, a refusal of a temporary entry permit. It was in substance a decision that a temporary entry permit would have been granted if there had been grounds for permanent residence.

Accordingly, the matter went for hearing as an application to review the

permanent residence in Australia. The attack that was made on the	decision that there were no grounds for the applicant to be granted
decision was made under section 5(11(a) of the Administrative Decisions (Judicial Review) Act 1977 (the Judicial Review Act), that is the ground of natural justice, and under 5(l)(e) which picks up 5(2)(a) and (g) amounting to an assertion that the Minister took an irrelevant consideration into account and exercised the powers that were vested in him in such an unreasonable manner that no reasonable person could have so exercised it.
The applicant's claim for permanent residence, as I said, was either as a refugee or on the basis that special humanitarian and compassionate considerations apply to his particular circumstances.
The applicant claims to have been blacklisted by the Indian Peace Keeping Force, presently stationed in Sri Lanka in a size numbering in the tens of thousands, who are said to be seeking him because of

L financial and other support he provided, during the two to three years

prior to his departure from Sri Lanka, to an organization known as the
Liberation Tigers of Tamil Elam, commonly called the Tamil Tigers.

The applicant's fear of return to Sri Lanka, where his wife and family live, is based on his claim that because of the support he gave to the Tamil Tigers in those years, he is now being sought not only by the Indian Peace Keeping Force and by a revolutionary group said to be attached to that force called the Three Star Alliance, a loose knit coalition of leftist Tamil groups who support the 1987 Indo-Sri Lankan

L peace accord.

decision, two letters from the Refugee Advice and Casework Service	It is claimed that the Minister did not consider, when he made his
addressed to him and dated 14 December 1988 and 25 January 1989. These letters allege - in addition to the considerable bulk of material which had been submitted to the Minister and the DORS committee at an earlier stage by the Refugee Council of Australia, by Amnesty International, and by other groups - that two of the applicant's closest friends were shot
dead in November 1988 by members of this Three Star Alliance. The applicant believes that he also would have been killed had he been with either of these people at the time. The letters also point out that another close friend of the applicant was arrested and beaten by the Indian Peace Keeping Force, said to be an attempt by them to find the
applicant who had lived in that friend's home at some stage.
It is conceded that these two letters were for some reason not brought to the attention of the Minister or the people advising him, but it is common ground that another letter of 5 January 1989 from the Refugee

ii Advice and Casework Service was considered. This letter raised most of the same matters. It also appears from other documents that consideration was given to everything that had been submitted on behalf of the applicant except the deaths in late 1988 of his two friends.

The circumstances that the applicant has been in custody since his arrival in Australia and also that obtaining reliable information from Sri Lanka, even by a person at liberty, and even by governments with diplomatic representation in Sri Lanka, makes facts difficult to come by. The obtaining of accurate information and information from which

ji reasonable inferences can be drawn is difficult. In such circumstances

the Court should not insist upon strict proof of facts relied on, as it

material on which the department and, when it comes to the Court, the	would do in other types of litigation. However. there must be some	Court can proceed which has a reasonable chance of being correct before any serious conclusions of fact or law should be drawn.
There is simply no evidence that the two friends died because of their friendship with the applicant or because of their having carried out activities similar to those which the applicant suggest would result in his persecution or death if he was returned to Sri Lanka now. It is perhaps not surprising that this evidence is absent because it would be difficult now to establish, I suppose, why two people who are dead were killed by unknown and unidentified people. It is hardly likely that the
killers would have left a note to explain why they were doing away with
their victims.
On the other hand, the absence of evidence makes it quite impossible for the Court to draw a conclusion that the death of the friends foretells

L the likely persecution or death of the applicant. It has to be

remembered that when the friends died, the applicant had not been in Sri Lanka for almost 12 months. This suggests, in a small country like Sri Lanka, that it was unlikely that the deaths came about because of any association between the victims and the applicant.

So far as concerns the activities which the applicant puts forward as being the reasons why the Court should conclude that the Minister was wrong in assessing that he was not likely to be subject to danger of persecution if he is returned to his own country, it is impossible to

L know whether the friends who died were carrying out activities of the

same or a similar kind. The applicant does not contest that his

way in which circumstances have been moving in Sri Lanka in recent	association with the Tamil Tigers was minor and of some vintage in the
years.
The letter of 5 January 1989 which was considered pointed out that a group loosely associated with the Indian Peace Keeping Force was seeking to find the applicant presumably for the purpose of subjecting him to cruel or other persecution or worse, but there is no evidence that he is a particular target of this organization and still less that their apparent interest in him was generated by what is now fairly distant assistance to the Tamil Tigers.
The applicant says that he was denied natural justice in that he was not given a true or real opportunity to present everything that he wanted to present or could have presented to the Minister before the relevant decisions were made. He refers particularly to the decision on 23 February 1989 to refuse him a temporary entry permit because he could

L not make out a case for permanent residence, and the decision which

accompanied that conclusion, namely the decision that he should be removed from Australia in accordance with section 36A, or the powers vested in the Minister thereunder.

I am unable to see that any relevant natural justice was denied to this applicant. On his behalf, at least one detailed statement which was translated from the Tamil language into English went to the Minister and this was supported by letters from family members and friends in Sri Lankia. A number of official documents of one kind or another, including a report tabled in the United States Congress about recent developments in the security situation in Sri Lanka, a significant and

weighty demarche by Amnesty International, and material from other	organisations some of whom I have mentioned, all appear to have been
considered and considered thoroughly.
Even now, despite the earnest and formidable efforts by the applicant's solicitor, nothing relevant has been suggested and nothing put forward on behalf of the applicant which makes it at all likely that if the application for review was upheld on this ground and the matter remitted to the Minister, a different decision would be likely to follow. In my my opinion the ground that there has been a relevant breach of section 5(L)(a) of the Judicial Review Act fails.
The second ground under section 5(l)(e) and 5(2)(b) of the Judicial Review Act suggests that the relevant considerations set out in the two letters to which I have earlier adverted were not taken into consideration. I have made already some observations in that connection. It is undoubtedly relevant that two friends died at the

L hands of the Indian Peace Keeping Force in November 1988 but I cannot see how this would be relevant to or bring about a decision in favour of the applicant to grant permanent residence on the grounds of humanitarian considerations or refugee status. In any event the substance of these matters was considered because of the letter of 5 January. This contained the additional assertion that a revolutionary offshoot of the peace keeping force was seeking the applicant. In my opinion, the evidence fails to make out the case required by section 5(2) (b).

The third attack is under a combination of section 5(l) (e) and 5(2) (g),

namely that the Minister's decision was quite unreasonable.

with a large number of applications by Sri Lankan citizens for residence	Australia has been faced, since the troubles in Sri Lanka commenced,
in Australia on one basis or another. Because of the fundamental innocence of most of the persons involved of any crime other than the desire for themselves and their families to remain alive and to live peaceful and comfortable lives in Sri Lanka, almost all of them have created difficulties. The relatively small size of Sri Lanka as a country and of its population, the nature of the problems that have existed there in recent years, the difficult relationship between India and Sri Lanka and in particular between the Peace Keeping Force and the Sri Lankan Army and other groups, make it impossible to deny that many, most or perhaps all Sri Lankans have been living in conditions of very considerable danger to their personal safety in the last several years.
There is no doubt that the Australian Government and people have great sympathy for this plight and situation but this does not create evidence that a decision that a particular person is not entitled to refugee

L

status or residence on humanitarian or compassionate grounds was not one which a reasonable Minister could have made in all the circumstances. The documents before the court show that judgments were made by the Minister's advisers, that the applicant's association with the Tamil Tigers was too small and too remote to single him out for special attention and likely persecution if he returns. Understandable though such conclusions are, the problems that confront Sri Lankan citizens cannot be so coolly, dispassionately or logically addressed. Neither is the Geneva Convention on Refugees so limited, and care must be taken not

i, to re-write or re-word the Convention so as to suit government or public

policy at any particular time.

Nonetheless, there are no grounds to believe here that any further or

reconsideration of the circumstances would result in any different

conclusion or decision being made. Having regard to all the circumstances, I think that it should be concluded that the Minister's decision in substance to refuse the applicant resident status in Australia did not involve the exercise of a power in such an unreasonable way that no reasonable person could have so exercised it. It will be of little assistance to the applicant in the event, but it should be clearly understood that these cases present immense difficulties for the Court as I am sure they do to the Minister and his advisers. This case is well and truly in that catgory. Eowever, having regard to the limited role which the Court must play in these matters and to the detailed and lengthy consideration which has been given to it by the Minister, I must sadly conclude that the application fails. The application is dismissed with costs.

L

I certify that this and the Ti+
preceding pages are a true copy Of the

Reasons for Judgment herein of his Honour

Justice Einfeld

Associatek

Dated:  3 ,pn&.<c(./ / r l6?