Paramanathan, Kirushantan v Minister for Immigration and Multicultural Affairs

[1998] FCA 517

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)

Applicant A vMinister for Immigration & Ethnic Affairs (1997) 142 ALR 311
Cases N97/175 and N97/19852
Cases V97/06157 and N97/20814
Chan Yee Kin v Ministerfor Immigration & Ethnic Affairs (1989) 169 CLR 379
Durairajasingham v Minister for Immigration & Multicultural Affairs (Davies J, 11 November 1997);
Kopalapillai v Minister for Immigration & Multicultural Affairs (Merkel J, 24 December 1997).  

Muralidharan v Minister for Immigration & Ethnic Affairs (1996) 62 FCR 402

Navaratne v Minister for Immigration & Multicultural Affairs (Tamberlin J, 1 August 1997 );
Ram v Ministerfor Immigration & Ethnic Affairs (1995) 130 ALR 314,
In R v Secretary of State for the Home Department, Ex parte Sivakumaran [1988] AC 958 Reg. v Home Secretary Ex parte Robinson (1997) 3 WLR 1162
Sambandan v Minister for Immigration & Ethnic Affairs (Gray J, 30 June 1997);
Thevanathan v Minister for Immigration & Multicultural Affairs (Sundberg J, 24 December 1997 )
Thirunavukkarasu v Canada (Minister for Employment & Immigration) (1993) 109 DLR (4th) 682
Umerlebee v Minister for Immigration & Multicultural Affairs (Marshall J, 28 August 1997 );

KIRUSHANTAN PARAMANATHAN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
NG 53 OF 1998

DAVIES J
15 MAY 1998
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 53  of   1998

BETWEEN:	KIRUSHANTAN PARAMANATHAN Applicant
AND:	MINISTER FOR IMMIGRATION AND 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 53 of 1998

BETWEEN:	KIRUSHANTAN PARAMANATHAN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

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

REASONS FOR JUDGMENT

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

The applicant was a 19 year old Tamil who had lived most of his life in the northern part of  the Jaffna peninsula.  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."

(emphasis added)

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;

...

(g) that there was no evidence or other material to justify the making of the decision. ...

(4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless: (a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist."

Before turning to the particular facts of the case and to the Tribunal's decision, it is desirable that I make some general observations on the operation of the Refugees' Convention in relation to Sri Lanka where there has been civil war in the north of the country for many years.  Currently, Tamil Separatists are still fighting the Sri Lankan Government.  It is, I think, not in dispute that conditions in the northern part of Sri Lanka have been horrific and that many atrocities have occurred in both the northern and southern parts of the country, although particularly in the north.  Several hundred thousand persons including Tamils have fled the country fearful of injury or death should they remain.  However, the Refugees' Convention does not apply to persons merely because they flee from war.  The application for refugee status in the present case was based upon the allegation that the applicant feared persecution for reasons of race, his Tamil ethnicity, and for imputed political opinion, the political opposition of Tamils to the predominantly Sinhalese Government. 

Persecution involves the infliction of harm.  In Chan Yee Kin v Ministerfor Immigration & Ethnic Affairs (1989) 169 CLR 379, Mason J said at 388:

"When the Convention makes provision for the recognition of the refugee status of a person who is, owing to a well-founded fear of being persecuted for a Convention reason, unwilling to return to the country of his nationality, the Convention necessarily contemplates that there is a real chance that the applicant will suffer some serious punishment or penalty or some significant detriment or disadvantage if he returns. Obviously harm or the threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group subjected to such harassment by reason of membership of the group, amounts to persecution if done for a Convention reason. The denial of fundamental rights or freedoms otherwise enjoyed by nationals of the country concerned may constitute such harm ..."

McHugh J at 430-1 examined the concept in more detail.  I need not set out his Honour's lengthy exposition of the nature of persecution.  However, his Honour emphasised the point stated by Mason CJ, namely, that there must be harm or a threat of harm directed to the person in some selective way, whether individually or as a member of a group and that the course of action amounting to persecution must be done for a Convention reason.   At 430, McHugh J said:

"As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is `being persecuted' for the purposes of the Convention. The threat need not be the product of any policy of the government of the person's country of nationality. It may be enough, depending on the circumstances, that the government has failed or is unable to protect the person in question from persecution:   " .

Burchett J enunciated the concept of persecution in a helpful way when, in Ram v Ministerfor Immigration & Ethnic Affairs (1995) 130 ALR 314, his Honour said at 317:

"Persecution involves the infliction of harm, but it implies something more: an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation (however twisted) for the infliction of harm.  People are persecuted for something perceived about them or attributed to them by their persecutors. Not every isolated act of harm to a person is an act of persecution." 

His Honour explained that there is a common thread linking the words "persecuted" and "for reasons of" and the attributes, "race, religion, nationality or membership of a particular social group or political opinion".  Burchett J explained that the common thread between these provisions was motivation which was implicit in the very idea of persecution, was expressed in the phrase "for reasons of" and which fastened upon the victim's attribute of race etc.  The victim is persecuted because of that attribute.  Those words of Burchett J have been cited on many occasions including in Applicant A vMinister for Immigration & Ethnic Affairs (1997) 142 ALR 311, by Dawson J at 341 and by Gummow J at 375.

It necessarily follows that random acts of violence which occur during civil war do not constitute persecution for the purposes of the Convention and it also follows that acts done in the protection of the community in the course of the identification or punishment of criminals or terrorists would not ordinarily be seen as persecution of the individuals affected.  As McHugh J said in Chan at 354:

"Conduct will not constitute persecution, however, if it is appropriate and adapted to achieving some legitimate object of the country of the refugee. A legitimate object will ordinarily be an object whose pursuit is required in order to protect or promote the general welfare of the State and its citizens. The enforcement of a generally applicable criminal law does not ordinarily constitute persecution [Yang v Carroll (1994) 852 F Supp 460 at 467]. Nor is the enforcement of laws designed to protect the general welfare of the State ordinarily persecutory even though the laws may place additional burdens on the members of a particular race, religion or 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 [cf Korematsu v US (1944) 323 US 214]. But the sanction must be appropriately designed to achieve some legitimate end of government policy. Thus, while detention might be justified as long as the safety of the country was in danger, lesser forms of treatment directed to members of that race during the period of hostilities might nevertheless constitute persecution. Denial of access to food, clothing and medical supplies, for example, would constitute persecution in most cases. It need hardly be said that a law or its purported enforcement will be persecutory if its real object is not the protection of the State but the oppression of the members of a race, religion, nationality or particular social group or the holders of particular political opinions." (emphasis added)

However, the sanction may be thought to be persecution if it is not appropriately designed and directed to achieve some legitimate end of Government policy.  If the measures are not appropriate but constitute serious violations of human rights directed, for example, to members of a particular race, that circumstance may be thought to constitute persecution for the purposes of the Convention.  See McHugh J in Chan at 430. That is because an inference can be drawn from the excess of the measures taken, the inappropriate violence or detriment in what is done, that the measures involve an intent to inflict harm or penalty for reasons of race, political opinion etc. The inference is drawn from the inappropriateness of what is done.

I mention these matters to indicate that, in a country such as Sri Lanka, where atrocities and breaches of human rights have occurred with a great frequency over many years yet the basic objective of the Government is not to persecute persons of the Tamil race but to defend the country against the Tamil Separatists, the task of deciding whether persecution occurs can be a difficult one and, in many cases, the decision may be borderline.

In many cases, the view has been taken that persecution of Tamils by reason of their race or political opinion does not generally occur in Sri Lanka and that the problems which Tamils face are an incident of the civil war and of the terrorism in which the Tamil Separatists still indulge.  In R v Secretary of State for the Home Department, Ex parte Sivakumaran [1988] AC 958, Lord Keith said at 995:-

"It is well known that for a considerable time Sri Lanka, or at least certain parts of that country, have been in a serious state of civil disorder, amounting at times to civil war. The authorities have taken steps to suppress the disorders and to locate and detain those responsible for them. These steps, together with the activities of the subversives, have naturally resulted in painful and distressing experiences for many persons innocently caught up in the troubles. As the troubles have occurred principally in areas inhabited by Tamils, these are the people who have suffered most.  The Secretary of State has in his decision letters expressed the view that army activities aimed at discovering and dealing with Tamil extremists do not constitute evidence of persecution of Tamils as such.  This was not disputed by counsel for any of the applicants, nor was it seriously maintained that any sub-group of Tamils, such as young males in the north of the country, were being subjected to persecution for any Convention reason."

More recently, in Reg. v Home Secretary Ex parte Robinson (1997) 3 WLR 1162, the facts were very similar to the present for the claimant was a young male Tamil who had no relatives to accommodate, support or protect him in Colombo. He had little employment prospects or capacity for independent supporting, he had no secure accommodation and there was a risk of the repetition of detention he had previously undergone in Colombo, having regard to his previous history and the understandable interest of the authorities in young Tamil males. The appeal from a decision refusing refugee status was dismissed. Lord Woolfe, delivering the judgment of the Court of Appeal, said at 1177:

"In our judgment, although it is clear that living in Colombo still creates its problems for Tamils from the north, this is far from being an obvious case of Colombo not being a safe haven or internal flight alternative, and the tribunal did not err in law in failing to recognise that the special adjudicator had not expressly with it as such.  This application is therefore dismissed."

To like effect, a report of the Refugee Council of the United Kingdom of February 1977 which was before the Tribunal shows, inter alia, that the conflict between the Government forces and the Secessionist Tamil Tigers has produced over half a million refugees from the war.  Of the 35,000 who had fled to the United Kingdom, most had, prior to 1993, been permitted to stay, having received grants of exceptional leave to remain, which was on a basis other than the Refugees' Convention.  After 1993, due to a change in the basis upon which exceptional leave to remain was granted, very few Tamils were permitted to stay.  The Refugee Council reported that, since 1993, over 95% of decisions have been refusals of refugee status. The Tribunal also had before it a 1997 report of the Danish Immigration Service which reported, inter alia, on the 550 asylum seekers expelled from Switzerland to Sri Lanka since 1995.  Clearly, it is not uncommon for refugee status to be refused to Tamils who have fled Sri Lanka.

However, Miss Wilkins has referred me to Thirunavukkarasu v Canada (Minister for Employment & Immigration) (1993) 109 DLR (4th) 682. Linden JA, delivering the judgment of the Federal Court of Appeal, said that the appellant, who was a male Tamil faced, according to the findings of the Refugee Panel, a serious risk of persecution in the north of Sri Lanka. Linden JA turned his attention to the question of relocation of the appellant to Colombo. The Refugee Panel had concluded that the appellant would face no more than a minimal possibility of persecution if he was relocated to Colombo. Linden JA, however, referred to the appellant's testimony that he had been subjected to arbitrary arrest and detention, as well as beatings and torture, at the hands of the Sri Lankan Government during his time in Colombo, and that these were motivated by the simple fact that he was a Tamil. Linden JA concluded that the appellant faced a serious risk of persecution in Colombo from the Sri Lankan Government on the basis of race and that the discretion of the Court should be exercised by declaring the appellant a Convention Refugee. This finding was to the contrary of the United Kingdom cases to which I have referred. I have no difficulty in accepting that the conclusion reached in Thirunavukkarasu is one to which a decision-maker could come if the decision-maker thought it proper to do so, having regard to the facts as outlined in that case and in cases such as the present. 

In Australia, the refusal of refugee status to Tamils seems commonplace.  Recent decisions of the Court which have dismissed applications seeking orders of review with respect to the refusal of refugee status to Tamils include: Sambandan v Minister for Immigration & Ethnic Affairs (Gray J, 30 June 1997); Navaratne v Minister for Immigration & Multicultural Affairs (Tamberlin J, 1 August 1997 );  Umerlebee v Minister for Immigration & Multicultural Affairs (Marshall J, 28 August 1997 ); Durairajasingham v Minister for Immigration & Multicultural Affairs (Davies J, 11 November 1997); Thevanathan v Minister for Immigration & Multicultural Affairs (Sundberg J, 24 December 1997 ) and Kopalapillai v Minister for Immigration & Multicultural Affairs (Merkel J, 24 December 1997).   Miss Wilkins has, however, referred me to some decisions of  Refugee Review Tribunals which have taken a contrary view.  In Cases N97/175 and N97/19852, it was found by a Refugee Review Tribunal that the claimant had been the subject of persecution by reasons of race or political opinion by Sri Lankan Army Forces in the north of Sri Lanka.  In each case, it was held that it was not reasonable to expect the claimant to relocate to another part of Sri Lanka.  These two decisions followed the general course of reasoning that was adopted in the Canadian decision of Thirunavukkarasu.  In cases V97/06157 and N97/20814, the facts were very similar to those in the present case but each claimant's status as a refugee was accepted.  Those decisions would seem to be inconsistent with the decision in the present case.

I have not engaged in this very long introduction with a view to saying that Tamils who flee Sri Lanka are or are not entitled to the protection of  the Refugees' Convention; but rather to say 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.  It is endeavouring to eliminate human rights abuses and has established systems to reduce their occurrences. On the other hand, if the evidence of claimants for refugee status is accepted, human rights violations, detentions, beatings, torture and death continue to occur at the hands of the Armed Forces and of the Security Forces.  In a circumstance such as this, it is not for the Court to make up its own mind.  This Court does not have the discretionary power which was exercised in Thirunavukkarasu.  The terms "well-founded fear", "persecuted for reasons of" and "race, religion, nationality and membership of a particular social group or political opinion" are all terms which require the decision-maker to come to a value judgment.  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. 

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 applicant was a 19 year old Tamil who had lived his life principally in Archevelli in the northern part of the Jaffna peninsula.  In 1988, during the occupation of the Indian Peacekeeping Force, he and a friend were caught in cross-fire between the Indians and the Tamil Tigers.  He was detained for a week by the Indian forces and was mistreated.  Subsequently, when he was between the ages of 12 and 16, the applicant was required to work for the Liberation Tigers of Tamil Eelam ("LTTE") in work in the nature of digging bunkers, carrying food parcels to LTTE guards and standing guard for the LTTE.  In late 1994, when he was at the age of 16, he was forcibly conscripted by the LTTE, taken to an LTTE camp and given an LTTE haircut to identify him as a new recruit.  He was told he would be trained by the LTTE.  However, that night there was an attack upon the camp by the Sri Lankan army and the applicant was able to escape.  In 1995, the applicant fled with his family to Kodikaman to avoid the advancing Sri Lankan army.  He again came under pressure to join the LTTE.  He was forced to dig graves for the LTTE.  In 1996, he and his family and others of the district were evacuated to the Vanni, another LTTE controlled area, because of the advancing Sri Lankan army.  The applicant decided he should leave Sri Lanka.  He and his mother escaped the Vanni by a back road.

On the trip to Colombo, the applicant had to pass through two camps, Thandikulam and Veppankulam.  These were transit camps where refugees fleeing from the north were held.  The applicant gave evidence that, at Thandikulam, he was stripped of his clothes, hung upside down and beaten across the back with a stick.  He was interrogated and tortured by having his head dipped in water.  Later, at the Veppankulam camp, he was blindfolded and interrogated and then repeatedly beaten, his face was dipped in petrol and he was for some time kept blindfolded with his hands and legs tied.  Ultimately, his mother was able to arrange his release from the camp on the payment of money.

The applicant gave evidence that, in Colombo, on 29 May 1997, he was taken into police custody where he was identified by an informer wearing a balaclava as a member of the LTTE.  He was severely beaten up, sustaining heavy blows to his legs, making it impossible for him to walk for some time.  Again, he was released after money was paid.  The applicant left Sri Lanka on 13 September 1997, but due to inadequate travel documents, he was returned to Colombo airport on the following day.  There, perhaps because of lack of identification, he was detained by the police for 3 to 4 hours and beaten.  He was bleeding from his nose and mouth.  Some of his teeth were damaged.  He lost consciousness.  He was released again after the payment of money.  Unfortunately, he then went to a Muslim house in Colombo.  On 16 September 1997, this house was raided after a large cache of LTTE arms had been seized in the area.  The applicant and other Tamils were arrested.  Again, he was blindfolded, repeatedly questioned and beaten.  His release was arranged after the payment of money.  He left Sri Lanka on 21 September 1997, arriving in Australia on 22 September 1997.

Miss Wilkins submitted that the applicant fled from persecution by the LTTE and that he was later subjected to even greater persecution by the Sri Lankan forces.  The issue before the Tribunal was primarily concerned, however, with the question whether the applicant was subject to persecution in Colombo for reasons of race or political opinion.  Having regard to the way in which the case was put, the Tribunal did not deal, expressly at least, with the question whether it was reasonable for the applicant to relocate to another part of Sri Lanka.  Presumably, in any event, Colombo was the safest area for him.

The Tribunal did not expressly deal with the issue of possible persecution by the LTTE, although it did mention in the course of the reasons, that the tasks and duties expected of the applicant by the LTTE applied equally to other boys of his age group in the LTTE controlled areas.  I infer from the Tribunal's process of reasoning that it considered that the present was not a case where the applicant had a well-founded fear of persecution by the LTTE for Convention reasons and feared to return to Sri Lanka because of the likelihood of such persecution by the LTTE if he did so.  Presumably, the solicitor for the applicant, Mr Leonard Karp, did not put the case on this basis. Mr Karp's written submissions to the Tribunal of 7 November 1997 and 26 November 1997 did not put a case of persecution by the LTTE at any greater length than that which appears in the reasons of the Tribunal.  Mr Karp concentrated, in his lengthy submissions, on the activities of the Sri Lankan Armed Forces and the Indian Peacekeeping Force in the north of the country and upon the activities of the Sri Lankan Security Forces and Armed Forces in the south.  Had the case as put by Mr Karp to the Tribunal been one of persecution by the LTTE, the Tribunal would have discussed this in detail and would have gone on to discuss the reasonableness of relocation to another part of Sri Lanka. The case that was put to the Tribunal was that the applicant would face persecution in the nature of detention, beatings and torture in Colombo should he be returned to Sri Lanka.  And that, indeed, is the case that one gleans from the amended application for an order of review which has been filed in this Court.  The ill treatment which is there addressed is referred to as "the mistreatment of the applicant during detentions".  The amended application mentions that "the applicant was detained and tortured for a Convention reason" and "the mistreatment of the applicant in custody".  Nothing in the amended application raises to one's mind any of the treatment which the applicant may have suffered at the hands of the LTTE.  Certainly, the amended application does not raise as an issue the proposition that the Tribunal did not turn its mind to the question of persecution by the Tamil authorities or to the question whether it was reasonable for him to relocate in another part of the country.

As the Tribunal understood the matter, the crux of the case was whether the applicant was likely to suffer persecution at the hands of the Sri Lankan forces if he were returned to Sri Lanka.  The Tribunal concluded that, apart from the fact that he was a young Tamil man from the Jaffna peninsula, there was nothing in the applicant's profile which was likely to attract the interest of the Sri Lankan authorities.  The Tribunal pointed out that the incidents at Thandikulam and Veppankulam occurred because they were screening areas where the Forces seek to identify persons who may be terrorists.  The Tribunal did not expressly say so but it could have pointed out that the event of 23 May 1997 happened shortly after the applicant's arrival in Colombo, when the Colombo authorities first took an interest in him, that the event of  14 September 1997 occurred when he arrived back at the Colombo airport, perhaps without documents which clearly identified him, and that the event of 16 September 1997 occurred when a large cache of LTTE arms was found in the area of the lodge in which he was living.

The Tribunal found that the applicant would not be likely to suffer persecution if he returned to Sri Lanka.  The Tribunal said, inter alia:

"While I have reservations as to whether the applicant during his various periods of detention suffered mistreatment to the extent he has alleged, in the absence of contrary evidence I am prepared to give him the benefit of the doubt.  While mistreatment of persons in detention in Sri Lanka has been well documented by Amnesty and others, there is no suggestion that such mistreatment 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 & Anor, unreported.  Olney J. 18 April 1997 at 13).  Furthermore, the Tribunal notes the recent improvement in human rights referred to in the Amnesty 1996 report on Sri Lanka cited above.

In conclusion, the detentions could not of themselves be regarded as persecutory, but rather as the legitimate enforcement of procedures designed to combat the threat of LTTE terrorism.  The mistreatment during the detentions cannot be regarded as appropriately designed to achieve a legitimate end of government policy, but neither would it be persecution in the Convention sense, but rather indiscriminate cruelty.  Moreover, the evidence suggests that such abuses are no longer so widespread as before.  Therefore, although the applicant may be subjected to detentions in the foreseeable future as he has been in the past, these detentions do not give rise to a well-founded fear of being persecuted by the authorities for reasons of race or imputed political opinion should he return to Sri Lanka."  (emphasis added)

There was material before the Tribunal justifying this conclusion if the Tribunal chose to rely upon.  For example, the report from the Danish Immigration Service said that of the 550 Tamils who had been expelled from Switzerland, only 27 had been arrested on entry or shortly afterwards at checkpoints or boarding houses and that the majority of these 27 were detained for 48 hours for identity checking and the detainee was, as a rule, released.  According to the report, the Swiss Federal Refugee Office had not received information of maltreatment suffered by any of the repatriated asylum seekers.  The Australian High Commission in Colombo and the Department of Foreign Affairs also rejected the view that young Tamil males in Colombo were likely to suffer persecution.

Other material before the Tribunal pointed in a different direction.  The British Refugee Council reported that the laws I have mentioned and other steps taken by the Sri Lankan Government to improve human rights for all citizens of Sri Lanka had not put an end to abuses.  The Council reported, 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)

One can see that there was material before the Tribunal from which a conclusion could be drawn, as it was drawn by the Tribunal, that such human rights violations as occurred in Colombo, particularly against male Tamils, were not of such a nature as to constitute persecution.  On the other hand, there was material before the Tribunal from which a contrary inference could have been drawn. The Tribunal was the decision-maker of fact and the Tribunal concluded in the passage I have set out above that, although mistreatment is endured by Tamils during detentions, nevertheless such mistreatment did not constitute persecution but rather indiscriminate cruelty.  By the words "indiscriminate cruelty", the Tribunal implied random or individualised cruelty not reflecting an intention on the part of the Armed or Security Forces or of the Government to harm or injure Tamils.  I cannot draw a conclusion from the Tribunal's approach to these matters that the Tribunal erred in its interpretation of the applicable law or incorrectly applied the law to the facts as found.

Miss Wilkins referred to a number of passages in the Tribunal's decision in which the Tribunal commented that it did not appear that the applicant had been singled out from other persons in the same position.  Miss Wilkins submitted that the Tribunal erred in not understanding that it is sufficient that the person affected be a member of a race or group at which persecution is targeted.  Miss Wilkins referred to Chan at 429 and Muralidharan v Minister for Immigration & Ethnic Affairs (1996) 62 FCR 402 at 405. However, I do not draw the conclusion that the Tribunal misunderstood the principles to be applied. It was clearly a relevant matter whether the applicant was a person who, because of his background or attributes, was at special risk. The Tribunal thought not.

Miss Wilkins submitted that, as the Tribunal's findings were based at least in part upon the advice obtained from the Department of Foreign Affairs and Trade as to the attitude of the Sri Lankan Government to Tamils in Sri Lanka, that the Tribunal failed to give consideration to the applicant's particular circumstances, namely the detentions and harm he had received in Colombo and the fact that, because he was a young Tamil male without relatives or like connections or employment in Colombo and without identity papers which would identify him to security forces as a safe person, he would be at constant risk of harsh treatment similar to that which he had already received in Colombo.  However, I do not draw the conclusion that the Tribunal failed to take these factors into account.  The Tribunal referred to many of them.  It was open to the Tribunal to reject the applicant's claim notwithstanding these factors just as it was open for the Court in Reg v Home Secretary,  Ex parte Robinson to form the conclusion that, notwithstanding the presence of similar factors, it was reasonable for the claimant to relocate from the LTTE controlled areas to Colombo.

Miss Wilkins submitted that there was an error of law in the Tribunal's findings that the abuses which occurred in Colombo "are no longer so widespread as before".  Miss Wilkins said it was incumbent upon the Tribunal to identify any evidence of a crucial change of circumstance between the date when the applicant left Colombo on 27 September 1997, and the date of the decision.  I do not read the Tribunal's reasons as referring to a relevant change in circumstances during that period.  The Tribunal was referring to the fact that the position in Colombo has been improving in recent years.  This was a relevant point and there was adequate evidence before the Tribunal about it.

Miss Wilkins submitted that there was a error of procedure in that the Tribunal failed in accordance with s 430 of the Migration Act to make findings on material questions of fact referring to the evidence and any other material on which the findings of fact were based. Miss Wilkins submitted that the Tribunal did not specifically refer to the Amnesty International Report 1996, the British Refugee Council Report of 1997 or material set out in the submission of the solicitor, Mr Leonard Karp, dated 7 November 1997. In my opinion, the Tribunal dealt adequately and fairly with the substance of the matter over some 15 pages and complied with the requirements of s 430. The Tribunal was not required to discuss each specific piece of evidence that might have supported a contrary view.

Miss Wilkins submitted that the case fell within s 476(1)(g) of the Migration Act and that there was no material to justify the making of the decision. Miss Wilkins submitted that it was not open to the Tribunal to find that the mistreatment in custody which occurred in Colombo was not directed in a discriminatory way to young Tamil males or that the treatment of the applicant in custody was indiscriminate cruelty and not persecution. These submissions misunderstand the operation of s 476(1)(g) and (4). The Tribunal's decision was based on the material before it and accorded with decision-making in many like cases. In the end, a judgment as to whether persecution was likely or was not likely to occur in Sri Lanka if the applicant was returned and as to the reasons why beatings, detention and torture occur there was very much a matter of assessment by the decision-maker rather than one on which there was or could be any clear or decisive evidence. The Tribunal formed its own view on these matters. Paragraph 476(4)(a) did not apply as the Tribunal did not make a decision in which a particular matter was required to be established. Paragraph 476(4)(b) did not apply for there was no proof that the facts found by the Tribunal did not exist.

In Chan at 413, Gaudron J said that the decision-maker should "reach an honest and reasonable decision by reference to broad principles which are generally accepted within the international community."  In my opinion, the Tribunal reached such  a decision, notwithstanding that in some other decisions which can be pointed to, a different view was taken.  The Tribunal was entitled to give substantial weight to the views expressed by the Australian High Commission in Colombo and the Department of Foreign Affairs and Trade.  As McHugh said in Chan at 428, when discussing the interpretation of the Convention, "It is unlikely, therefore, that a State party was expected to grant refugee status to a person whose account, although plausible and coherent, was inconsistent with the State's understanding of conditions in his or her country of nationality."  I have not identified any reviewable error in the Tribunal's decision. 

For these reasons, the application will be dismissed with costs.

I certify that this and the preceding fifteen (15) 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:	Ms AF Backman
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	20 April 1998
Date of Judgment:	15 May 1998