QAAG of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1283

FEDERAL COURT OF AUSTRALIA

QAAG of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1283

MIGRATION – protection visa – whether the Refugee Review Tribunal considered that harassment was as a result of the applicant’s race – whether the Refugee Review Tribunal considered the applicant’s age in deciding whether certain conduct was persecutory

QAAG OF 2004 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Q77 OF 2004

DOWSETT J
7 OCTOBER 2004
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 77 OF 2004

BETWEEN:	QAAG OF 2004 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	DOWSETT J
DATE OF ORDER:	7 OCTOBER 2004
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The application be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 77 OF 2004

BETWEEN:	QAAG OF 2004 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	DOWSETT J
DATE:	7 OCTOBER 2004
PLACE:	BRISBANE

REASONS FOR JUDGMENT

THE APPLICATION

1. The applicant is a Sri Lankan national and a Tamil.  He is now seventy years of age.  He was widowed in 1983 and has two adult daughters, one of whom lives in Australia and is a medical practitioner.  He entered Australia on 2 June 2001.  On 20 July 2001, he applied for a subclass 785 (Temporary Protection) (Class XA) visa.  On 4 September 2002, a delegate of the respondent (the “Minister”) rejected the application.  The Refugee Review Tribunal (the “Tribunal”) affirmed the decision of the Minister.  The applicant now seeks review of that decision.

   BACKGROUND FACTS

2. In the early 1980s, the applicant was living in the north of Sri Lanka.  At that time Tamil militancy was increasing.  The applicant’s nephew, who was then living with him, joined a Tamil group.  As a result, the applicant came under the scrutiny of government security forces.  They assaulted and threatened him at home and at his workplace, apparently to induce him to disclose the whereabouts of his nephew.  He was twice taken to army camps for questioning.  In 1983, the applicant resigned from his employment and moved to another town in the north, Kilinochchi.  His wife died from heart failure shortly after the move.  He continued to be harassed by the army and was threatened with death if he did not produce his nephew.

3. From about March 1985, armed groups of Tamils were moving around the area and seeking financial support.  On occasions they approached the applicant.  If he was unable to assist them, they would threaten him.  In February 1986, the army attacked his village, presumably because of Tamil activity in the area.  The applicant suffered property damage.  Between 1987 and 1989, the Indian Peace-Keeping Forces (“IPKF”) maintained order in the area, but the Liberation Tigers of Tamil Eelam (“LTTE”) continued to solicit funds.  On one occasion, the applicant paid 200,000 rupees in four instalments.  When IPKF left in 1989, LTTE took over administration of the area.  In 1990 LTTE asked him to perform translation services.  He was fluent in English, Sinhalese and Tamil.  He agreed to these requests as he feared harm if he refused.  He worked for LTTE in various roles until 1996.

4. In 1996, as a result of army operations in his area, he moved to Nawalapitiya.  On the way, the army detained him because of his work for LTTE.  He paid a bribe of 50,000 rupees to secure his release.  On his arrival in Nawalapitiya, he was detained for three days while the police made inquiries concerning him.  Regular police checks followed.  On five occasions, he was assaulted by the police.  In 1999, two young LTTE members demanded money.  They knew that his daughter worked as a doctor in Australia.  His association with the young LTTE members also attracted further adverse army and police attention.  He was detained for a week and required thereafter to report fortnightly.  At the same time, the LTTE members threatened him with death if he did not pay them more money.  In October 2000, members of Sihala Urumaya (a radical and perhaps racist party) threatened to kill him if he did not leave the area.  The Tribunal observed that they also robbed the applicant.  He went into hiding at Nawalapitiya until June 2001, when he came to Australia.

5. I have summarized the more significant aspects of the applicant’s  history.  I have not included all of his complaints of harassment, but the overall effect is clear enough.

   THE TRIBUNAL’S FINDINGS

6. The Tribunal accepted most of the applicant’s evidence.  It was generally consistent with available independent information.  In particular, the Tribunal accepted the history of harassment by the security force, after 1996, saying at p 22:

   ‘I accept that the applicant was subjected to the checking and questioning he described and that he may have been detained on the two occasions he has identified in his claims, these are at the time of his arrival in 1996 and in August 1999. I also accept that he could have been mistreated in this context. In my view, the Sri Lankan authorities were entitled to check the bona fides of individuals in order to attempt to secure the population from terrorist attacks. Unfortunately, it was the LTTE which undertook such terrorist attacks and so it was Tamils who were likely to face questioning and investigation in this regard.’

7. The Tribunal accepted ‘… that the violence he experienced could be regarded as persecutory…’, but concluded that, ‘…I do not consider that the evidence indicates that the applicant was seriously suspected by the authorities of being actively involved with the LTTE’.

8. Information available to the Tribunal concerning circumstances in Sri Lanka disclosed that LTTE is ‘… the main Tamil separatist terrorist organisation …’.  Members are commonly known as the ‘Tamil Tigers’.  It advocates a separate independent state, or at least considerable autonomy for the Tamil minority.  The long battle between security forces and LTTE, especially in the north and east of Sri Lanka, has included terrorist attacks and security crackdowns, disappearances, “extrajudicial” killings, torture and mistreatment of people in custody and large scale arrests of Tamils.  The focus of the security forces is primarily upon young Tamil men, particularly those who have come to Colombo from Tamil areas.  When identified in random security checks, they are frequently detained for periods varying from forty-eight hours in most cases to three months.

9. Since December 2001, there has been a ceasefire of sorts.  LTTE is no longer an unlawful organisation.  Notwithstanding the ceasefire, there have been isolated incidents of violence, harassment, extortion and restriction of movement by both the army and LTTE.  These incidents seem to occur mainly in the north and east.  The ceasefire has led to some relaxation of security procedures, with consequential reduction in government harassment and mistreatment of Tamils.  However LTTE has increased its own harassment and extortion activities against Tamils in Colombo.  It has withdrawn from the peace talks but has indicated that it does not intend to break the ceasefire.

10. Sihala Urumaya was formed as a political party in April 2000.  It seeks to establish a single Sri Lankan state, safeguard equality between various cultural and religious groups and reclaim ‘the lost rights of Sinhalese’.  It has other economic and political objectives.  It is radical in its outlook and has been implicated in violence, including the murder of Tamils.

11. As to the applicant’s concerns about further harassment by LTTE, the Tribunal concluded that it was quite likely that LTTE members had sought to extort money from him for their own use rather than for the LTTE.  It did not consider that the evidence demonstrated an intention by them to pursue the applicant with any vigour or to harm him.  This was based upon the relative infrequency of their contacts with him.  The original demand was made in November 1999.  The Tribunal also pointed out that LTTE and its members were now able to operate politically with few restrictions.  Ceasefire violations perpetrated by LTTE have been in connection with child recruitment, hostage-taking, killing of members of rival Tamil groups and mistreatment of Muslims, none of which activities is likely to affect the applicant.  The Tribunal considered that the possibility of further extortion was remote and, in any event, doubted whether such activity had been motivated by a Convention reason rather than by the perception that the applicant might have funds.  As to Sihala Urumaya, the Tribunal accepted that the applicant had been threatened and that his Tamil ethnicity may have been a significant factor in that.  However, as the incident also involved robbery, the Tribunal considered that this may have suggested an alternative motivation unrelated to persecution for a Convention reason.  It pointed out that the applicant had remained in Nawalapitiya for much of the following eight months and that there had been no further approach to him, although it recognised that he had claimed to be in hiding.  The Tribunal was unaware of any evidence which suggested that Sihala Urumaya was currently persecuting Tamils.

    SUMMARY

12. The Tribunal clearly placed weight upon the reported improvement in circumstances in Sri Lanka and to the fact that the applicant was, at the relevant time, sixty-nine years of age.  In the Tribunal’s view, this latter matter ‘… weighs against him facing a real chance of persecution given what he experienced in the past and independent information which has consistently stated that it is young Tamils who were at risk’.   It concluded that the evidence suggested that he had never been seriously suspected of active association with LTTE and that the relaxed security arrangements meant that it was unlikely that the security authorities would harass him as a result of his failure to report fortnightly since he left Sri Lanka.

    APPLICANT’S GROUNDS

13. The applicant submits that the Tribunal erred:

    ·in failing to consider whether ‘…the essential and significant reason for the harassment and harm suffered by me between 1996 and 2001 was my race’;

    ·in not addressing the correct question, namely ‘…whether because of my age, treatment that may not be persecutory to a younger person may nonetheless by persecutory of me’; and

    ·in failing to consider whether the applicant has a well-founded fear of persecution in Nawalapitiya for reasons of his race, notwithstanding the relaxation of security precautions.

    FIRST GROUND

14. The applicant contends that the Tribunal did not consider whether the harassment and harm which he suffered between 1996 and 2001 was because of his race.  This assertion is simply incorrect.  The Tribunal accepted that the applicant had suffered harm between 1996 and 2001.  It also accepted that he was subjected to security checks and was detained because of his Tamil background and that such actions could amount to persecution.  However the Tribunal concluded that ‘…the Sri Lankan authorities were entitled to check the bona fides of individuals in order to attempt to secure the population from terrorist attacks.’

15. As to the future, the Tribunal concluded that:

    ‘… my assessment of the information outlined above about current circumstances in Sri Lanka has led me to conclude that there is not now, nor in the reasonably foreseeable future, more than a remote chance that the applicant would face persecution, including mistreatment in custody, because of his ethnicity and an associated political opinion, real or imputed. In coming to this view, I have been mindful of what the applicant experienced in the past.’

16. The Tribunal accepted that the applicant had suffered arguably persecutory conduct for ethnic reasons, but found that there was no more than a remote chance of his suffering such conduct in the future.  The Tribunal’s conclusion that the applicant was not suspected of being a supporter or member of the LTTE was also of some importance in this regard.

17. This ground must fail.

    SECOND GROUND

18. The Tribunal was obviously well aware of the applicant’s age.  In fact, it considered that his age reduced the likelihood of his suffering persecution.  This was because the independent information suggested that government interest is focused on young Tamil men.  That view was open on the evidence.  The ground cannot be maintained.

    THIRD GROUND

19. This is no more than an assertion that the applicant disagrees with the Tribunal’s conclusion.  It adds nothing to his case.  Indeed, it is expressed in a form which suggests that it is dependent upon success on one of the other grounds.

    PERSECUTION BY LTTE AND SIHALA URUMAYA

20. Neither the amended application nor the applicant’s written outline addresses his complaints of harassment by these groups.  In any event, the Tribunal’s conclusion that neither, for the future, offered any well-founded threat of harassment was available on the evidence.

    RETURN TO SRI LANKA

21. The Tribunal observed:

    ‘There are a number of aspects of the applicant’s circumstances which would make his return to Sri Lanka very difficult for him. He is getting quite old and while still sprightly his capacity to settle himself back into his country would be very much less than if he were younger. He clearly enjoys a close relationship with his daughter here and with his five year old grand-daughter and he would miss them and they him. He has claimed that he does not know the present whereabouts of his other daughter which is possible given that he has moved about in Australia as his daughter has taken up medical positions in different places and given that his daughter in Sri Lanka appears to have moved as well. Returning to the part of his county where he spent most if [sic] his life and where the LTTE retains control, that is the north, would be extremely difficult for him given the damage which has been done there. These kinds of factors are, however, not among those which the Tribunal can take into account in making its assessment. A consideration of the applicant’s circumstances on such grounds is a matter solely within the Minister’s discretion.’

22. I was told that the applicant’s second daughter is now in India.  It may be appropriate to draw these matters to the attention of the Minister.

    ORDERS

23. The application will be dismissed.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:             6 October 2004

Counsel for the Applicant:	The Applicant appeared in person
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	1 September 2004
Date of Judgment:	7 October 2004