Parathan, Lalitha v Minister for Immigration and Multicultural Affairs

[1998] FCA 1792

FEDERAL COURT OF AUSTRALIA

IMMIGRATION - review of decision of Refugee Review Tribunal - fear of persecution by LTTE - fear of persecution by Sri Lankan authorities - Tribunal adopted a series of assumptions in favour of applicants - alleged failure of Tribunal to give reasons - alleged failure of Tribunal to address central issues in applicant's case - alleged failure of Tribunal to engage in reasonable speculation

Migration Act (Cth) 1948, ss 430(1)(b), 476(1)(a)

Re Minister for Immigration and Multicultural Affairs and Anor; Ex parte Abebe (1998) 151 ALR 711, applied

Politis v Commissioner of Taxation (1988) 16 ALD 707

LALITHA PARATHAN AND ORS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 1064 OF 1998

MADGWICK J
SYDNEY
7 DECEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1064  of  1998

BETWEEN:	LALITHA PARATHAN First Applicant
NADESWARAN PARATHAN Second Applicant
NADES DHUVARAHAN PARATHAN Third Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	MADGWICK
DATE OF ORDER:	7 DECEMBER 1998
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The applications are dismissed.

1. The applicants are to pay the respondent's costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1064  of  1998

BETWEEN:	LALITHA PARATHAN First Applicant
NADESWARAN PARATHAN Second Applicant
NADES DHUVARAHAN PARATHAN Third Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	MADGWICK
DATE:	7 DECEMBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR:

I am of course acutely aware of the significance of this case for the applicants.  The fact that I have chosen to decide the matter now, without needing to reserve my reasons, should not be taken to indicate that I have not seriously considered the matter or that I do not realise what an important issue it is for them.  I have also had the benefit of reading the very helpful submissions of both parties. 

The view to which I have come is that the application to this court must fail. 

Background facts

The applicants are a Tamil family from Sri Lanka.  The first applicant is the male head of the family, the second applicant is his wife, and the third applicant is one of their children

(another child having been born in Australia since their arrival).  As Mr Karp, the solicitor who capably represented the applicants, indicated, this is not the common kind of case concerning Tamils from Sri Lanka which this court sees.

The applicants are a middle class family who appear to have given their evidence with honesty before the Tribunal.  The Tribunal accepted that, despite the dreadful troubles in Sri Lanka and the racism that exists in that country, the applicants had coped until late 1996.  Indeed, I would say that by their fortitude they were able to cope admirably. 

Mr Parathan, the first applicant, was apparently a middle level manager in private enterprise.  His wife, the second applicant, was an information officer employed by the Sri Lankan Government.  She had the advantage of studying for several years in India when young.  They had obtained passports some years before the events in question.  Mr Parathan grew up in Colombo and Mrs Parathan left the Jaffna Peninsula for Colombo in 1989.  In 1992 they married.  Mrs Parathan owned a flat in Colombo in which the family resided. 

In late 1996 they had four visits from a young Tamil woman and two young Tamil men who insisted that the young woman be permitted to reside with the Parathans in their home.  From an early point the Parathans believed that these people were connected with the "Tamil Tigers," the LTTE.  For that reason, among others, the Parathans did not wish to receive the stranger into their home.  They made their objection clear.  The visitors made reference to Mrs Parathan's deceased brother who, as a young man had joined the Tamil Tigers and had been killed in 1987.  It was suggested by the visitors that the Parathans ought to help the Tamil Tiger cause as Mrs Parathan's deceased brother had done.  After the third visit from the young Tamil trio, the police came to the Parathan's home.  No harm was done; the police visit appearing to be merely routine.  A few hours after the fourth and final visit of the Tamil Tiger sympathisers, however, the police and security forces returned in a more aggressive fashion.  The Parathans drew the inference, which was accepted as likely by the Tribunal, that there had been a "tip-off" that they had been visited by "suspicious people".  On this occasion their house was vigorously searched, "ransacked" was an expression used and accepted.  They were warned, but no other harm was done to them.

A fortnight after this incident the applicants had left Sri Lanka and arrived in Australia on a three month visa.  They arrived not long before Christmas.  They explained their delay of a few weeks in making their applications for refugee status on the basis that their belief was that there was no necessity for urgent action, and that they had sought to get legal aid before engaging private legal representation.  All this took some time.  No criticism was ultimately made of them on that score.

The applicants' case before the Tribunal

The applicants' case is that the events to which I have referred, taken in the context of background events in Sri Lanka, engendered in them a well-founded fear of persecution.  Very briefly, the background events and circumstances are:  long-standing racism by the Singhalese people towards the Tamils; the Tamil Tiger insurgency; the loss of support among many Tamil people for the Tamil Tigers; governmental heavy-handedness in dealing with the insurgency, and; the racist and brutal methods employed by the police and security forces in dealing with Tamil people generally.  These events were followed by, in more recent years, an apparent determination by the Government to deal more fairly with Tamil people and to rein in the excesses of the police and security forces.  Such governmental efforts were endangered by a resurgence of Tamil Tiger terrorist activity in 1998. 

In these circumstances the applicants argue that an element of desperation on the part of the Tamil Tigers and correspondingly extreme nervousness on the part of the authorities may be inferred.  Despite their having lived reasonably until late 1996, the events in question have presented them with two threats.  The first is that they have come to governmental attention as persons suspected of harbouring Tamil Tiger sympathisers, or activists, and that therefore it is likely that they will be associated in official circles with the Tamil Tiger cause.  As a result they fear serious harm from the authorities including torture and even perhaps death.  The second fear is that the Tamil Tigers will not leave them alone.  They are Tamils and they do have a familial connection with a former Tamil Tiger fighter.  As it has become harder for the Tamil Tigers to find support among the Tamil population they are likely to continue to put pressure on the applicants.  That pressure may well take the form of real harm to them.

The Tribunal's decision

While the Refugee Review Tribunal ("the Tribunal") member accepted the substance of the applicants' factual claims she did express one reservation concerning what happened after the police made their first visit.  In its reasons the Tribunal said that it:

"accepts that the Applicants' visitors were, or would be suspected by the authorities [of being] members of the LTTE.  However ... the Tribunal does not find it plausible that the visitors would continue to return to the Applicants' home and on the last occasion, argue heatedly and loudly, when their request for a room had been repeatedly and firmly refused and especially after the Police checked the Applicants' home after mid October.  This is especially as the visitors, at least on their initial visits, had been signed in to the building by security guards and so their identities were recorded.  The Tribunal also accepts that the authorities are inundated with tip-offs about LTTE suspects and notes that particularly in an apartment building, neighbours are close by and the risk for the visitors is considerable."

In considering the Tribunal's reasoning process I am mindful of statements indicating that one should not take a "pernickety" approach, to use the colourful expression of Kirby J in Re Minister for Immigration and Multicultural Affairs& Anor; Ex parte Abebe (1998) 151 ALR 711 at 714, nor should one look "with an eye keenly attuned to error", as Lockhart J put it in Politis v Commissioner of Taxation (1988) 16 ALD 707 at 708. For myself I think that when reviewing administrative decisions one ought to try to understand what the Tribunal's reasoning process really was from the reasons that have been given.

In understanding the Tribunal's reasons, it is relevant that the applicants were represented by a solicitor who has some specialty in immigration matters.  It is also relevant to understand the manner in which the primary decision of the Minister's delegate was made.  Relevantly that decision-maker said of Mrs Parathan:

"the fact that she was not detained on either of the occasions she has claimed the army searched her premises and was not questioned again before departing Colombo indicates that the authorities do not have a genuine and continuing interest in the applicant".  (Emphasis added)

The point was thereby expressly raised that it would need to be considered what continuing significance, if any, the events of late 1996 might have now in 1998.

In 1998 the applicants still had relatives in Colombo and Mr Parathan had been a white collar worker of some status who had lived there all his life.  It is not difficult to think, in all the Parathans' circumstances, that if there were any sign of continuing interest in them by the LTTE or by the Sri Lankan authorities as they fear, that this would have been manifested in some way and that evidence of this would have been produced.

In this context the Tribunal seems to have dealt with the matter on a series of assumptions.  For example the applicant's claim that the visitors were in fact members of the LTTE seems to have initially been doubted, but the Tribunal went on to determine the matter upon the assumption, as I have indicated, that the authorities would consider or at least suspect that they had been members of the LTTE.  The Tribunal, despite its rejection of what happened in relation to the repeated visits, dealt with the matter on the assumption that the account of those repeated visits was true, because the Tribunal said:

"Even if the Applicants' claims about the repeated visits are true, the Tribunal is not satisfied that the visitors would have retained any interest in the Applicants since that time or that they would be at risk of harm from those specific visitors or from the LTTE generally if they returned to Sri Lanka now.  Given the passage of time, the Applicant husband's evidence that they did not know what became of their visitors or even if they are still alive, and the lack of any indicator of ongoing interest in the Applicants, the Tribunal finds that the Applicants do not have a well-founded fear of harm from the visitors or from the LTTE if they returned to Sri Lanka now."

Dealing with the claimed fear of persecution by the Sri Lankan authorities the Tribunal noted that although the applicants were warned by the authorities after the second visit they were:

"not harmed, taken for questioning, detained or mistreated.  The Tribunal finds that there is no evidence to suggest that the authority subsequently became aware of the Applicants' visitors or of the Applicant wife's deceased brother's LTTE membership.  Nothing further happened in the following two weeks and the applicants left the country legally and without difficulty.  The Tribunal does not accept the assertion that the applicants are wanted by the authorities for any reason.  There is no evidence to suggest that they could not return to Sri Lanka legally and without difficulty... 

The Tribunal does not accept as plausible the suggestion that because they left the country within two weeks of a visit from the authorities, that they could not safely resume their lives either at their former address or elsewhere in Colombo or Sri Lanka."

Finally, the Tribunal did not accept that the applicants had a well founded fear of persecution from the authorities simply because they were Tamils.  In any event, even on the assumption that some difficulties might face them, the Tribunal thought that it was reasonable to expect the applicants:

"as well established Colombo residents and property owners to relocate either with relatives or apart, temporarily or permanently within their own country [particularly] if they fear future visits from the young Tamils and consequently attention from the authorities as a result of such visits being reported."

The applicants' case for review

The amended application for review made to this court raises the following matters.  First it is said that the Tribunal failed to observe procedures that it was required by s 430(1)(b) of the Migration Act 1948 ("the Act") to observe, in that it failed to give reasons.  Three matters are pointed to in which the Tribunal supposedly failed to reveal its process of reasoning.  First, in regard to the frequency and timing of the alleged visits by the LTTE trio.  Second, with respect to the relocation finding.  And third, in relation to the issue of whether the visitors were from the LTTE. 

It seems to me that the first and third of these are of no account whatever, even if there was some failure to expose the process of reasoning because, ultimately, as I have indicated, the Tribunal dealt with the matter upon the assumption that matters were as feared by the applicants and as stated by them.  In relation to these matters, the Tribunal simply did not accept some of the claims made to it.  It was not necessary for the Tribunal to state with precision its reasons for rejecting those of the applicant's claims that were based on factual claims that the Tribunal did not accept, particularly as the Tribunal had in its reasons assumed the worst about the visits.  The Tribunal concluded that they did not give rise to a continuing and present well-founded fear of persecution.  For myself I do not feel that there is any failure to reveal the process of reasoning. 

In relation to the matter of relocation it does appear to be a reasonable proposition, even on the applicant's own account, that persons such as the applicants could overcome their apparently temporary troubles with the LTTE and Sri Lankan authorities by changing

address.  The Tribunal's conclusion, that it would be reasonable that they might temporarily relocate and overcome their difficulties, hardly needs further explanation in the circumstances of this case.

The second submission raised by the applicants was that the Tribunal erred in law in that it failed to observe procedures, required by the Act, by failing to address the central issues whether, notwithstanding their comfortable life until late 1996, the applicants' situation had changed; whether they would now be under continuing suspicion by the security forces, and whether the LTTE might now have a continuing malign interest in them.  My own view is that it is enough to recount the history of the matter, as I have done, to make it clear that the Tribunal did indeed understand these central issues.  It was not necessary for the Tribunal to flag them expressly as the "central issues".  The Tribunal dealt with the argument and submission fairly enough, in my opinion.  I do not think that there has been any error in applying the law, nor any failure to observe any of the procedures laid down by the Migration Act.

The final submission raised by the applicants was that the Tribunal erred in its interpretation of the relevant law and in applying it, by failing to consider the possibility that future events might not conform with those of the past.  Thereby it is claimed that the Tribunal failed to engage in reasonable speculation emerging from a consideration of the whole of the material and in particular that the Tribunal erred in interpreting and applying the law as to the feasibility of the applicants' relocation.  In my view the Tribunal did engage in reasonable speculation in relation to the facts as it found them to be, or as it assumed them to be.  Further, it is clear enough to me that the Tribunal was entitled to regard the absence of any indicator of future trouble, from late 1996 through to 1998, as a relevant factor denying a positive speculative conclusion in favour of the applicants.  I am unable to see any difficulty in the Tribunal's legal approach to the question of relocation.  There was material available, it seems to me, which amply justified the conclusion which was come to.

To the extent that I have not specifically referred to other matters raised by the submissions of counsel for the respondents, I accept the general thrust of these submissions to the extent that they do not conflict with what I have already said.  But as this case calls for no detailed reasons I feel that I have adequately exposed my own process of reasoning in relation to the matter.

Conclusion

For these reasons, regrettably the applications must fail.  The applicants are to pay the respondent's costs of the proceedings.

I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick

Associate:

Dated:             7 December 1998

Solicitor for the Applicant:	L Karp of McDonells Solicitors
Counsel for the Respondent:	S Lloyd
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	7 December 1998
Date of Judgment:	7 December 1998