Nagaratnam v MIEA

[1998] FCA 1014

FEDERAL COURT OF AUSTRALIA

IMMIGRATION – appeal from Refugee Review Tribunal (“RRT”) – review of RRT decision - whether “well founded fear of persecution” on grounds of race, political opinion or social group – Tamil citizen taken into detention - whether maltreatment whilst in detention is for a Convention reason – whether connection between detention and maltreatment is sufficient to attract Convention protection – whether extortion can amount to persecution – nature, reason and extent of extortion.

Migration Act 1958 (Cth) ss 5(1), 36(2), 420, 424 and 430

1951 Convention Relating to the Status of Refugees as Amended by the 1957 Protocol Relating to the Status of Refugees

Jahazi v Minister for Immigration and Ethnic Affairs (1995) 61 FCR 293, cited.
Sivarasa v Minister for Immigration and Multicultural Affairs (Federal Court, unreported, 11 June 1998), distinguished.
Chan v Minister for Immigration and Multicultural Affairs (1989) 169 CLR 279 and 379, cited.
Kirushantan Paramanthan v Minister for Immigration and Multicultural Affairs (Federal Court, unreported, 15 May 1998), applied.
Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565, cited.
Suresh Sambandan v Minister for Immigration and Ethnic Affairs (Federal Court, unreported, 30 June 1997), cited.

KRISHNAKUMAR NAGARATNAM v
MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

NG 125 OF 1998

TAMBERLIN J
SYDNEY
17 AUGUST 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 125 of 1998

BETWEEN:	KRISHNAKUMAR NAGARATNAM APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	17/08/98
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The application is 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 125 of 1998

BETWEEN:	KRISHNAKUMAR NAGARATNAM APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	17/08/98
PLACE:	SYDNEY

REASONS FOR JUDGMENT

The Refugee Review Tribunal (“the RRT”), on 9 February 1998, affirmed a decision of a Ministerial delegate refusing to grant a Protection Visa to the applicant.  The applicant seeks review by this Court of the RRT decision.

A Protection Visa can be issued by the Minister where he is satisfied that an applicant is a person to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as Amended by the 1967 Protocol Relating to the Status of Refugees (“the Convention”): see ss 5(1) and 36(2) of the Migration Act 1958 (Cth) (“the Act”). Australia is a party to the Convention and generally speaking, has protection obligations to people who are refugees as defined therein.

The relevant definition is found in Article 1A.  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 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 thirty year old Tamil man who is a citizen of Sri Lanka.  He arrived in Australia on 31 October 1997, and lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs.  On 21 November 1997, a Ministerial delegate refused to grant a protection visa and on 25 November 1997, the applicant sought review of that decision before the RRT.

The applicant’s case was put on the basis that he had a well-founded fear of persecution for reasons of race and that his race acted as a trigger for the imputation of a political opinion in favour of the Liberation Tigers of Tamil Eelam (the“LTTE”).  Specifically the applicant claimed the following matters:

“a)In his home town of Jaffna he had been victimised by the Liberation Tigers of Tamil Eelam (LTTE) because of his brother’s involvement in a rival group.

b)Apart form this he, and the general population, were the victims of bombing and shelling by the Sri Lankan Army and Air Force, as well as incidents of beating, detention and torture at the hands of the Sri Lankan and Indian armies.

c)In 1989 the EPRLF (yet another Tamil militant group) attempted to press gang him into joining their ‘Tamil Army’ (otherwise known as the ‘Tamil National Army’),a fate from which he was saved through the payment of a bribe.

d)Mr Krishnakumar and his mother left Jaffna in late 1995 with the general evacuation of that city ordered by the LTTE.  They moved to Chavakachcheri and then to Pulliyamkulam where they lived until March 1997.   At that time Mr Krishnakumar decided to go to Colombo to escape pressure from the LTTE to recruit him.  He travelled with his mother to Thandikulam, near Vavuniya, where they stayed in a camp for three months before paying a bribe for a pass to be permitted to proceed to Colombo.

e)In Colombo, on 13 July 1997, he was picked up in a security sweep, imprisoned, assaulted by police, and other prison inmates at the instigation of the police who said he was from the LTTE, humiliated, kept in conditions with insufficient water to drink, and eventually produced before the Courts where the police were paid a bribe so as not to oppose bail.  He was released on 11 August 1997.

f)He was placed on reporting conditions, and ordered to appear in Court.  While reporting to the police he was harassed and threatened to try to get him to admit his guilt.  He was terrified of reporting and even more concerned after the bomb explosion in Colombo on 15 October 1997.  He escaped through the airport with the aid of an agent and flew to Singapore.”

After expressing the view that portions of the applicant’s evidence and case were inconsistent and lacked credibility, the RRT went on to say:

“Having accepted, however, his claim to have been in detention for three weeks, mistreated during that time and then released on bail, the Tribunal now turns to consider whether this constitutes persecution and whether it gives rise to a well-founded fear of being persecuted on return to Sri Lanka.

The Tribunal has considered two possibilities: one, that the applicant was a victim of an extortion attempt, and two, that the police were earnestly investigating the possibility that he was a LTTE agent.

The fact that the applicant might have languished in detention on a trumped-up charge in an extortion bid constitutes harassment.  Independent evidence shows that Tamils with some financial resources are fair game for unscrupulous policemen who threaten them with detention unless bribes are given.  The Sri Lankan Government recently ordered an investigation into an extortion scandal involving Tamil detainees by city and suburban-based police …The fact that the applicant was freed on bail after a bribe was paid to the police sergeant at the station at which he was arrested lends weight to the hypothesis that the applicant might have been seen as a likely target of extortion.  As the independent evidence quoted above indicates, the Government is taking steps to stamp out such practices.  Extortion, however, is not a Convention ground for persecution.  The applicant had money extorted from him, not because of his religion, race, political opinion or social group but because he was seen as someone who had the means to pay his way out of trouble.  His race might have made him more vulnerable to extortion but it was not the reason for the extortion.  There is no evidence to show that police in Sri Lanka extort money from Tamils because of their ethnicity, or that Tamils are the only targets; thus the extortionists ‘are not implementing a policy; they are simply extracting money from a suitable victim’….

The second possibility is that the applicant was detained because police did believe him to be an LTTE agent.  Sri Lanka is prosecuting a war against a separatists group, the LTTE, which is a recognised terrorists group: The Economist has noted that ‘Terror tactics have become even more attractive to the Tigers since the fall of their main stronghold, Jaffna, last December….”

The reasons go on to outline a series of acts of terrorism, mainly relating to the events in the capital, Colombo.  The reasons then proceed:

“Police detention of suspected LTTE agents in such a climate is, in the Tribunal’s opinion, a legitimate security measure.  McHugh J says in Applicant A that ‘the enforcement of laws designed to protect the general welfare of the State [is not] ordinarily persecutory even though the laws may place additional burdens on the members of a particular race, religion, nationality or social group.  Thus, a law providing for the detention of the members of a particular race engaged in a civil war may not amount to persecution even though that law affects only members of that race.’ (at 354).  Thus the Tribunal does not accept that the applicant’s arrest and detention constitutes persecution.  Nor does the Tribunal consider the period of detention excessive in the circumstances facing the Sri Lankan authorities.  In the Tribunal’s view, the fact that the applicant was allowed out on bail pending further investigation does not support a conclusion that the arrest and detention were persecutory and that the authorities were pursuing the applicant with ‘enmity or malignity’ (Applicant A per Gummow J at 592).

The fact that the applicant, according to his evidence, was made to sign a false confession and badly beaten is extremely distasteful, but in this case being abused in detention does not in itself constitute persecution.  While mistreatment of persons on detention in Sri Lanka has been well documented by Amnesty and others, there is no suggestion that such treatment was directed in a discriminatory way towards any particular group such as young Tamil males.  Rather, it appears to have been a generalised failure to adhere to basic standards of human rights.  As such, the mistreatment which the applicant suffered during detention cannot be regarded as persecutory in the Convention sense (see Applicant A per Gummow J at 334; Yan Xu & Anor v MIEA, unreported, 1997, per Olney J 16)

….

The Tribunal accepts that Tamils, like others in detention, face human rights abuses.  However, independent evidence shows that Tamils are not the sole target of abuse: the Unites States State Department says that ‘members’ of the security forces mistreat ‘detainees and other prisoners’….The Tribunal is of the opinion that such abuse is due to localised corruption in the police force or brutality by individual members of the police and armed forces.

Moreover, the abuses which have occurred are not condoned by the authorities….

…

In the light of the above independent evidence, the Tribunal finds that abuses in detention, such as the applicant experienced, are not officially tolerated in Sri Lanka and not themselves evidence of persecution.

In sum, the Tribunal is of the opinion that parts of the applicant’s evidence have been fabricated to bolster his claims for protection.  It finds a lack of credibility in the evidence relating to detention in Vavuniya, and in parts of the evidence relating to his detention in Colombo.  It accepts, however, that the applicant was detained in Colombo, and was badly treated in detention.  The Tribunal finds that if the applicant was put in jail merely to extort a bribe, this does not constitute persecution however unconscionable this behaviour might be.  The Tribunal finds that if the applicant was detained because the police believed him to be an LTTE agent, that in itself does not constitute persecution in a climate where Sri Lanka’s forces have to be on constant security alert because of acts of LTTE terrorism.  The Tribunal finds that the granting of bail to the applicant, whether by means of a bribe to police or not, does not indicate that the authorities were pursuing him with ‘enmity or malignity’ (Gummow J at 592 in Applicant A & Anor v MIEA & Anor, HCA February 24, 1997).  The Tribunal finds that it is likely, having flouted his bail conditions, that the applicant will be incarcerated and sternly treated on his return to Sri Lanka.  The Tribunal accepts that the applicant is in fear of this prospect, but finds that this is fear of prosecution for breaking a generally applicable law, rather than fear of persecution.  For all these reasons, the Tribunal is not satisfied that the applicant can be considered under the Convention as a refugee. 

CONCLUSION

Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s 36(2) of the Act for a protection visa.”

Procedural grounds of review

The applicant’s submissions, in respect of procedural grounds of review, are based on the requirements of ss 420, 424 and 430 of the Act. Those sections provide, so far as relevant, that:

“s 420 (1)       …

(2)       The Tribunal, in reviewing a decision:

(a)…

(b)must act according to substantial justice and the merits of the case.

s 424(1)If, after considering the material contained in the documents given to the Registrar under sections 418 and 423, the Tribunal is prepared to make the decision or recommendation on the review that is most favourable to the applicant, the Tribunal may make that decision or recommendation without taking oral evidence.

…

S 430(1)Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

(a)sets out the decision of the Tribunal on the review; and

(b)sets out the reasons for the decision; and

(c)sets out the findings on any material question of fact; and

(d)refers to the evidence or any other material on which the findings of fact were based.” (Emphasis added)

It is said that if non-compliance is made out under those sections then the ground of review provided for in s 476(1)(a) of the Act has been made out. That provision reads:

“s 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;

…” (Emphasis added).

Submissions

The argument in support of these “procedural” claims is that the RRT did not investigate the extent to which being a Tamil contributed to the arrest and subsequent cruelty suffered by the applicant while in detention. The applicant points out that it is not necessary to establish that a Convention ground is the sole reason for the fear of persecution but that it is sufficient if it is found to be one of the operative reasons leading to the mistreatment: see Jahazi v Minister for Immigration and Ethnic Affairs (1995) 61 FCR 293 at 299.

However, it should be noted that at the same page reference French J pointed out that a bare cause or connection was not sufficient to attract Convention protection but the availability of such protection must be approached as a matter of evaluation, which has regard to the policy of the Convention.

The RRT accepted that the applicant was arrested on suspicion that he was a member of the LTTE.  The evidence indicates that the LTTE is an organisation of Tamils.  The applicant was accused of collecting money for the LTTE and was, as a consequence, interrogated.  The reasons of the RRT refer to the fact that the police were investigating the possibility that he was an LTTE member.  Throughout the Tribunal’s reasons, quoted earlier, there are numerous specific references which make it apparent that the race of the applicant was taken into account.  For example, the RRT reasons refer to the consideration that:

“….Tamils, like others in detention, face human rights abuses.  However, independent evidence shows that Tamils are not the sole target of abuse.  The Unites States State Departments says that ‘members’ of the security forces mistreat ‘detainees and other prisoners’… The Tribunal is of the opinion that such abuse is due to localised corruption in the police force or brutality by individual members of the police and armed forces.”

The reasons for decision of the RRT do not indicate that it ignored the fact that the applicant was a Tamil.  The evidence of the applicant as a Tamil is implicit in the references to the LTTE and his suspected membership or knowledge of the activities of that organisation, which the police were investigating as a result of acts of terrorism alleged to have been committed by that body.  There are a number of references to his Tamil race in the reasons.  The reasons record that:

“Independent evidence shows that Tamils with some financial resources are fair game for unscrupulous policemen who threaten them with detention unless bribes are given.”

On its face, the reasoning of the Tribunal proceeds on the basis that the mistreatment was not selective in the sense that it only targets Tamils.  Rather, the reasons reflect a full and proper appreciation of the applicant’s case based on the ground of race.  Put another way the reasoning is that although the applicant was a Tamil he was not punished or maltreated for that reason.

In my view, the applicant has not established that the RRT failed to take into account and make findings with respect to the applicant’s case of mistreatment insofar as it was based on his race. 

The applicant’s second submission is that the RRT failed to consider that the applicant may have been targeted for a Convention reason, although generally in the country Tamils were not so targeted.  It is said that the RRT did not pay due attention to the individual circumstances of the applicant and that it operated on broad generalisations concerning circumstances in the country.

This argument cannot be accepted because the judgment, on its face, pays attention to the particular circumstances asserted by the applicant, which included those surrounding his detention; the interrogation concerning Mr Abulasi; his detention in Vavuniya, and his release shortly after payment of a bribe.

The applicant submits that where a person is detained by an organ of the State by reason of his race or political opinion and during that detention he is interrogated about his connection with a terrorist organisation and “unnecessary” and disproportionate harm are inflicted upon him, then in the absence of evidence to the contrary, there is an inference that the harm caused is for the same reason as the detention.  The authority cited in relation to this proposition is Sivarasa v Minister for Immigration and Multicultural Affairs (Federal Court, unreported, 11 June 1998).  In that case, Burchett J set aside a decision of the Refugee Review Tribunal in relation to a male Tamil from Sri Lanka. 

The proposition relied on by the applicant, in fact, is not supported by the observations of Burchett J in that case.  What his Honour said, when speaking of the reason for detention and its relation to the brutality suffered during detention, was that these circumstances called for “close scrutiny”.  After pointing out that the RRT in Sivarasa avoided a conclusion in favour of the applicant only by distinguishing between the legitimacy of the government’s action in having the applicant arrested and temporarily detained for questioning and the torture, his Honour referred to the decision of McHugh J in Chan v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 279 at 430 and went on to say (at 6) that:

“It follows that the distinction taken by the Tribunal cannot have the automatic effect (which the Tribunal thought it had) of liberating all cruelties perpetrated by the officers of the police and security forces in Sri Lanka from the shackles of the Convention.  On its own findings, the conduct complained of must be closely scrutinized to see whether the arrests and detentions in all the circumstances did not constitute “an appropriate means”, and thus were not saved by legitimacy of the ultimate end from amounting to persecution by the government of Sri Lanka within the meaning of the law as  expounded by the High Court."   

In the present case, close consideration of the RRT decision does not disclose circumstances which give rise to an inference that the brutality was for a racial or political reason.  Unlike the decision in Sivarasa the RRT in the present case made a finding in relation to the applicant that the mistreatment of the applicant was not directed at him in a discriminatory way as a Tamil male.  Moreover, the facts in this case and in Sivarasa are quite different.  In Sivarasa there was evidence from the applicant that he had been arrested and brutally beaten on more than four occasions.  These statements were accepted by the RRT, although it had some reservations.  The extent and frequency of detentions and the brutality whilst in detention will be a significant consideration for a decision-maker.

In refugee cases, the circumstances of each particular applicant must always be closely considered.  It is not appropriate to attempt to delineate any general principles which are transferable without close examination from one case to another.  Although a person such as the applicant may be targeted for interrogation and detention because he is a young male Tamil it does not follow that, in the absence of any evidence to the contrary, it ought be inferred that any brutality inflicted on him whilst he is in detention is harassment for a racial or political reason.  The availability of an inference from particular facts must depend on the entire factual context in which the inference is considered. 

In the present case, the decision-maker has examined the facts and considered that the harm inflicted was not racially caused.  In reaching this conclusion, of course, cognisance must be taken of the consideration that the applicant was arrested because he is a Tamil or suspected of being a Tamil.  This does not necessarily determine the outcome of the question whether there is a real chance that he will be persecuted on grounds of race or political belief.  While guidelines may be formulated from time to time, these are only for the purpose of assisting the decision-maker when carrying out an analysis of the circumstances against the background of the country conditions and the person’s treatment in that country.

The importance of the factual matrix is well illustrated by the judgment of Davies J in Kirushantan Paramanthan v Minister for Immigration and Multicultural Affairs (Federal Court, unreported, 15 May 1998).  This case concerned a young Tamil male applicant who had been refused a Protection Visa.  The applicant had also been beaten.  His Honour in dismissing the appeal, observed that:

“… the conditions in Sri Lanka are such that conflicting decisions can be expected.  It appears that the Sri Lankan Government is not seeking to persecute Tamils but to protect the country from Tamil separatists and Tamil terrorists …

In a case such as the present where one of the issues is whether the harm which the applicant suffered in Sri Lanka was motivated by a desire or intent on the part of the members of the security forces who were involved to harm Tamils and where excessive force and brutality seems to be committed in the objective of identifying terrorists or possible terrorists, the facts are difficult to characterise as one thing or another.  In this area one decision-maker could form one view while another decision-maker could come to another.”

These observations recognise that questions of weight and the appropriate emphasis to be placed on material before the RRT in particular cases will lead to differing results in similar circumstances. The remarks also drew attention to the fact that the evaluation of rights and the emphasis to be given to them is a matter for the RRT and not for this Court, which is narrowly constrained in the determination of whether limited grounds of review have been made out under the Act.

In the present case, I am not persuaded that the reasons of the RRT disclose any reviewable error in concluding that the mistreatment of the applicant was not because he was a Tamil nor because he was a member of the LTTE social group and was, therefore, suspected of being aware of the plans and operations of that group.

In addition, it is said that the RRT did not make any findings as to whether the applicant had been assaulted by fellow prisoners as the result of statements said to have been made when he was thrown into prison.  In fact, this matter was referred to in the recital by the RRT of the applicant’s case and it was not specifically rejected, as were a number of other assertions by the applicant.  I am not persuaded that the RRT failed to take account of this claim or that it made any finding which ignored this assertion.

I consider that it was open to the RRT to form the view on the evidence that the violence suffered was the consequence of random or generalised police brutality and did not result from harassment for a Convention reason.

Another argument raised was that the reasons relating to the detention cannot be reasonably severed from the reasons for the mistreatment.  It is said that because the detention of the applicant was for a Convention reason; namely, the fact that he was suspected of being a member or had knowledge of the LTTE activities and was a Tamil must lead to the conclusion, in the absence of any other evidence, that the mistreatment was also for a Convention reason. For reasons given earlier this conclusion does not follow.  It was open to the RRT in this case to find that the brutality was not for a Convention reason but that it occurred as the result of widespread random violence in detention centres.

Extortion

The RRT did not find that extortion could never amount to persecution for a Convention reason.  That would be an error of law.  Rather, it considered that the extortion was harassment: see Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 429, where McHugh J said:

“The notion of persecution involves selective harassment.  It is not necessary, however, that the conduct complained of should be directed against a person as an individual.  He or she may be ‘persecuted’ because he or she is a member of a group which is the subject of systematic harassment: …”

In this case, the decision of the RRT was that although there was harassment, it was not selective in the sense that it could be said to have been directed to the applicant as a Tamil or LTTE member, but rather because he was considered to have access to financial resources to pay a bribe in order to be released or improve the conditions in which he was detained.  In fact, a bribe was paid whereupon he was freed.  This fact, in my view, serves to reinforce the conclusion of the RRT that the extortion threats were based on passive pay rather than race or group membership.  After all, this is the base reason underlying extortion threats.

The RRT was entitled to conclude, as it did, that the applicant was seen as someone with the means to pay his way out of trouble and that while his race may have made him vulnerable to extortion, it was not an operative reason for the detention or maltreatment.  The evidence, in the view of the RRT was to the effect that the extortionists were not implementing any general policy or discriminatory programs against Tamils but were extracting money from them as susceptible targets.

The nature and extent of extortion in relation to Tamils in Sri Lanka has been considered in other cases before this Court.  The Full Court considered the question in Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565. That case concerned a Sikh who had left India and over a period of ten years accumulated a substantial sum of money before his return to India. He was perceived as a wealthy man. There was evidence before the RRT that extortion was often perpetrated by the police against wealthy persons. In dismissing the application for review, Burchett J (with whom O'Loughlin and RD Nicholson JJ agreed) said:

“He does not fear persecution for reasons of membership of a particular social group, but extortion based on a perception of his personal wealth ad aimed at him individually.  The appeal must be dismissed with costs.”

The issue in that case was whether a person returning from a foreign country with money or who was a rich Sikh could be classified as a social group for Convention purposes.  However, the decision proceeds on the basis that extortion directed at persons simply because they are wealthy individuals is outside the protection of the Convention.  This approach was followed by Gray J in Suresh Sambandan v Minister for Immigration and Ethnic Affairs (Federal Court, unreported, 30 June 1997).  The findings in that case disclosed that the extortion was directed at a diverse cross-section in Sri Lanka, including Tamils, Muslims, Sinhalese, businessmen, citizens with relatives overseas and others who were seen to be wealthy. The target was wealth not race or social group.  His Honour expressed some reservations on the questions whether “wealth” could be a criterion of a social group for Convention purposes.

In the present case, the factual finding made by the RRT was that the applicant was targeted because he had the means to buy his way out of trouble: that is to say because he had access to the necessary resources.  That finding was well within the province of the RRT and it is not for this Court to determine whether it was correct as a matter of fact.

Jaffna – security forces

The applicant also contends that the RRT made no finding as to the position of Tamils in Jaffna, although submissions were made by him on that point.

At the commencement of its “Findings and Reasons” the RRT noted that the applicant feared persecution in Jaffna.  It referred to action by the authorities in Jaffna in recent times to improve the security position in the Jaffna Peninsula and also to positive indications to that effect.  Reference was made to the establishment of a permanent Human Rights Commission, which opened its office in January 1998 in Jaffna and to the fact that executions had taken place with respect to security force personnel who were alleged to have engaged in human rights abuse.  After referring to these matters the Tribunal concluded:

“In the light of the above independent evidence, the Tribunal finds that abuses in detention such as the applicant experiences, are not officially tolerated in Sri Lanka and are not in themselves evidence of persecution.”

Again, it is a question of fact and degree.  These are matters for the RRT.  The above material lends support to the conclusion reached by the RRT that circumstances as to government action against the security forces have substantially improved since the applicant left Jaffna in December 1995.

In view of this I am not persuaded that the RRT failed to properly take into account the Jaffna situation and the evidence in relation to that when making its findings.

Conclusion

For the foregoing reasons I consider that the application for should be dismissed with costs.

I certify that this and the preceding twelve (12) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin

Associate:

Dated:             17/08/98

Solicitor for the Applicant:	McDonnells Solicitors
Counsel for the Respondent:	Mr Peter Braham
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	30 July 1998
Date of Judgment:	17 August 1998