Ranjan v Minister for Immigration and Multicultural Affairs

[2000] FCA 1594

FEDERAL COURT OF AUSTRALIA

Ranjan v Minister for Immigration & Multicultural Affairs
[2000] FCA 1594

GANEISHA SIRI RANJAN V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 43 OF 2000

NORTH J
5 OCTOBER 2000
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 43 OF 2000

BETWEEN:	GANEISHA SIRI RANJAN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	NORTH J
DATE OF ORDER:	5 OCTOBER 2000
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant is to pay the respondent’s costs of and incidental to this application.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 43 OF 2000

BETWEEN:	GANEISHA SIRI RANJAN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	NORTH J
DATE:	5 OCTOBER 2000
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 7 January 2000.  The Tribunal affirmed a decision of the delegate of the respondent, the Minister for Immigration and Multicultural Affairs, to reject the application by the applicant, Ganeisha Siri Ranjan, for a protection visa. 

   BACKGROUND AND CLAIMS

2. The applicant is a 35-year-old male citizen of Sri Lanka who arrived in Australia on 7 December 1996.  He is of Tamil ethnicity and Hindu by faith.  He claimed a fear of persecution for reasons of his alleged political association with the LTTE.  This claim was based on a number of specific incidents.  I set out the major ones taken from the decision of the Tribunal. 

3. In 1985 the applicant was beaten by army personnel in Jaffna when the school bus in which he was travelling was stopped. 

4. Then in July 1991 he was detained in Colombo after a bomb explosion in the Joint Operation Command.  He was released after his manager at work vouched for him.

5. In 1994, he married a Sinhalese woman.  Following his marriage his house was raided on two occasions, the second being in June 1995.  Although he suspects that the raids were a result of the actions of his wife's parents, who did not approve of the marriage, the raids also coincided with times of security crackdowns as a result of or following political assassinations. 

6. Then on 31 January 1996 an explosion occurred at the Central Bank in Colombo at or about the time he was working in the vicinity at Grindley's Bank.  By reason of the circumstances he regards himself as being suspected of complicity in that event.  On 2 February 1996 police visited his house, apparently in relation to this incident.

   TRIBUNAL’S FINDINGS

7. The Tribunal described the applicant's claims, based on these incidents and the surrounding circumstances, in the following way:

   “The Applicant fears he will be detained and tortured and killed if he returns to Sri Lanka because he is suspected of being a member of the LTTE and is imputed to have a dissident political opinion.”

8. There was another element in the applicant's case which both supported the claim of fear of persecution for reason of political opinion, but also a claim based on persecution by reason of race.  The Tribunal described this latter claim as follows:

   “He declares that the Tamil population in general is under suspicion and Tamils are constantly being checked, detained, searched and intimidated, tortured or disappeared.  It is submitted that repeated and onerous security measures that may result in serious harm are persecutory.  While it is legitimate to secure the safety of Sri Lankan citizens, the security authorities often go beyond the legitimate processes of ensuring security.”

9. The Tribunal rejected the applicant's claim based on his perceived association with the LTTE.  Throughout the recounting of the applicant's claims based on fear of persecution by reason of race, the Tribunal described the difficulties faced by Tamils in Sri Lanka.  By way of example, for instance, the Tribunal said:

   “While he lived in Jaffna he was often visited and questioned by security personnel, but they left him alone when he showed his National Identification Card (NIC) that showed he was born in Colombo and explained he was avoiding the communal difficulties in that city.  Other young men would often be tortured and disappear.”

10. Then later the Tribunal said:

    “On many other occasions he has encountered random security checks because he is a Tamil.”

11. Later again, the Tribunal said:

    “His declaration of 23 November 1999 explains that he did not believe his name had been given to airport authorities, although he believed he faced detention and mistreatment in the heightened security atmosphere in Colombo.”

12. The Tribunal then made findings in relation to the claim of fear of persecution by reason of race.  The Tribunal said:

    “In regard to his Tamil race, the Applicant was born in Colombo and lived there, apart from the years he was in Jaffna.  He stated that he was previously registered as a resident in that city, although not when he was questioned in mid-1995. 

    There are 500,000 Tamils in Colombo (nearly half of the population according to DFAT Country Information report No. 67/99 of 05/03/99).  The available information indicates that Tamils move into Colombo to escape the war in the north and find protection (see, for instance, ‘Tamil Arrests in the Capital Mount - Closing Down Colombo’ The Sri Lankan Monitor of March 1996 which recorded that 150,000 Tamil refugees from the North were living in the capital city).

    The Tribunal has canvassed the situation for Tamils in Colombo in many previous matters (see, for instance, V97/05886 of 20 April 1998) and has drawn the conclusion that they are not harassed for reason of their race per se although young, newly arrived Tamils from the North and North-east, particularly from LTTE-controlled areas, may be at risk of harassment because they are suspected of affiliation with the LTTE, cannot communicate in Sinhalese and have nobody to vouch for them.  Current information does not alter the conclusion that the present Applicant does not fall within the groups of Tamils who might be at real risk of persecution in Colombo.

    The Country Information Service report No. of 28 April 1999 [sic], ‘Sri Lanka conditions in detention’ notes that,

    'The risk of being detained varies across Sri Lanka and across demographics.  The risk of being detained is greater in the Jaffna region than in Colombo, though police and army have checkpoints in all areas of Sri Lanka.  Checkpoints stop people randomly. 
    …

    A young Tamil male in the Jaffna region suspected of having links or sympathies with the LTTE is most at risk and all Tamils could be systematically inspected up to several times each day.  While detention at checkpoints in Jaffna is common, more people are detained in military sweep-operations.  Cordon and search operations are common, often with hundreds being detained at a time in such operations.  These operations are especially carried out in areas with high concentrations of Tamils.  This includes Colombo (CIS Country Information Report No. 67/99 10 Mar 1999).

    In Colombo, all residents must be registered with the police.  Though approximately half the population of Colombo is Tamil, any person who cannot satisfactorily explain themselves to security personnel will be detained and security personnel are particularly interested in people with Tamil names.  Cordon and search operations in Colombo are more prevalent after acts of terrorism by the LTTE (CIS Country Information and Policy Unit, Immigration and Nationality Directorate, UK Home Office, 1998). 

    A Tamil registered in one district of Colombo detained in another can wait several days to be cleared as there is no central registration process.  They also then face the risk of being re-detained at another checkpoint.  These restrictions make freedom of movement for Tamils extremely complicated and problematic (CIS Country Information and Policy Unit, Immigration and Nationality Director, UK Home Office 1998).

    Residents of Colombo are usually allowed to move on if their identity card is in order unless the security forces have some reason to suspect them.  While no figures are available to represent the percentage of people detained of people questioned at checkpoints and in cordon and search operations, hundreds can be detained for short periods in any given operation.  Up to 1200 have been detained in a single operation, so the likelihood of arbitrary detention at some point, especially for Tamils, seems high.’

    The Applicant was born in Colombo and has a history of residence, education and employment with a large international bank there.  He can provide documentary evidence of his birth in Colombo with the NIC and his passport.  He speaks Sinhalese.  His mother lives in Colombo and he is married to a Sinhalese woman, so has relatives and former employers to vouch for him.  He has endured the routine security processes that affect all residents of Colombo, but despite living in a predominantly Tamil area that he claims was subject to some stringent security checks, he only encountered difficulties with security officials on one occasion in 1991 and twice in 1995.  Each of these incidents occurred during security crises over and above the usual security situation in Colombo.  He was not subjected to persecutory conduct and on each occasion was cleared of connection with the LTTE or any other group that might raise the suspicions of the authorities.  Any records that the authorities keep about him will demonstrate that he is not linked with any group that might result in him attracting the adverse attention of the authorities. 

    The Tribunal does not accept the submission that the pervasive security operation in Colombo may be persecutory of itself:  it is a legitimate measure taken in the attempt to protect residents from terrorist attacks.  It is possible that some people caught in that system of security may be persecuted but, for the reasons given above, the Tribunal finds there is not a real chance that the Applicant might number among the victims of persecution.  The information from various sources, including his own acceptable evidence, leads to the conclusion that there is not a real chance the security forces or other government agencies will persecute him on account of his race or because he is suspected of affiliation with the LTTE or other militant organisations.”

    APPLICATION FOR REVIEW

13. Mr Niall of counsel appeared on behalf of the applicant.  He tendered a summary of his argument at the outset.  It was a model of relevance and brevity, a stark contrast to the contentions filed earlier by other counsel.  The argument was restricted to two contentions relying on the error of law ground under s 476(1)(e) of the Migration Act (the Act).  The first contention was that the Tribunal wrongly applied the law to the facts as found by requiring the applicant to show an act that of itself constituted persecution.  The outline of argument elaborated this contention as follows:

    “The Tribunal looked to what happened on each occasion the applicant came to attention of authorities and what was likely to happen to an individual as a result of the security forces but did not go on to determine, as was claimed, whether the system was directed to the subjugation of Tamils.  In effect, the Tribunal required the applicant to establish the chance of an incident that of itself constituted a persecutory act.” 

14. The essence of this submission is that the Tribunal erred in a view that persecution could not be constituted by a series of acts unless one or more of the individual acts was itself seen as persecutory.  In my view, a fair reading of the Tribunal's decision does not reveal such an error.  In outlining the applicable law, the Tribunal set out the following passage from the judgment of Mason CJ in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 388 as follows:

    “… 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.”

15. This passage recognises that persecution may arise from a course of harassment.  As referred to earlier, the Tribunal recorded the numerous encounters which the applicant had had with the security forces.  In its findings the Tribunal said:

    “The applicant has indicated he frequently encountered routine security checks, but he has not claimed he was mistreated during those checks.”

16. A little later the Tribunal said:

    “In the circumstances, the Tribunal accepts that he was subjected to numerous security checks but is satisfied that the checks were routinely carried out in the stringent security environment of Colombo and that security officials were well aware that he had been in Jaffna.”

17. It is clear that the Tribunal had in mind the frequency, inconvenience and general nature of the security checks when considering the question of persecution.  That is to say it understood the task of assessing whether the systematic treatment of Tamils was persecutory.  It found that, as a matter of fact in the case of the applicant, the nature of that series of incidents did not amount to persecution.  It was relevant for the Tribunal to look at the nature of each incident as part of the series.  The reasoning process does not, in my view, demonstrate that the Tribunal required each incident or any particular incident to amount independently to persecutory conduct.  In the series of incidents and encounters under consideration, it just happened that that was the fact.  In my view, the first alleged error of law is not made out.

18. The second error of law was described in the applicant's outline of argument as follows:

    “The Tribunal wrongly applied the law to the facts as found [because it] failed to apply the law to the evidence which cumulatively demonstrated a course of systematic conduct directed at the applicant amongst others by reason of his Tamil ethnicity independently of any imputed connection with the LTTE.” 

19. The applicant contended that the evidence showed that the procedures adopted by the security forces were random, arbitrary, had a disproportionate effect on Tamils, made freedom of movement for Tamils extremely complicated and problematic, could result in short-term detention, even for those ultimately cleared of any connection with the LTTE and led to a real chance of persecution for those Tamil males unable to satisfy the authorities as to their identity.  The outline of argument concluded that given the nature of the conduct, the failure to address the cumulative nature of the claims, the absence of any reference to the applicable law and the bare conclusion reached on this point, the Court should be satisfied that the Tribunal did not properly apply the law. 

20. The Tribunal stated its conclusion on all of the evidence, namely, that the security operations were a legitimate measure taken in an attempt to protect residents from terrorist attacks.  The Tribunal found that save for some young newly‑arrived Tamils from the north and north-east, Tamils in Colombo were not harassed for reasons of their race.  It was not suggested by the applicant that this conclusion of fact was not open to the Tribunal.  No such contention could have succeeded because, for instance, the Country Information described the security reasons for the checks.  The contention of the applicant amounts to a challenge to the Tribunal's review of the facts.  Such a challenge is not open under s 476(1)(e) of the Act.  No error of law is shown on this second argument.  The result is that the application must be dismissed with costs. 

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:             8 November 2000

Counsel for the Applicant:	Mr R Niall
Solicitor for the Applicant:	Ravi James & Associates
Counsel for the Respondent:	Mr D Star
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 October 2000
Date of Judgment:	5 October 2000