Sivarasa, Vijayakumar v Minister for Immigration and Multicultural Affairs
[1998] FCA 660
•11 JUNE 1998
FEDERAL COURT OF AUSTRALIA
IMMIGRATION - appeal from Refugee Review Tribunal - Tamil repeatedly arrested for questioning and then tortured - arrests justified by emergency - whether torture could be said not to have been inflicted for reasons of race or political opinion because police officers were guilty of “indiscriminate cruelty” - whether the Tribunal misinterpreted the definition of refugee or misapplied it to the facts found - requirement laid down in Applicant “A” to give such a case “close scrutiny” - whether the “real chance” test required consideration of the possibility that an indiscriminately cruel officer might torture the applicant, after arresting him for questioning as a Tamil, for reasons of race, the more readily because he was such an officer - whether the Tribunal failed to act according to substantial justice by rejecting part of the applicant’s evidence as inconsistent with other evidence without giving him an opportunity to explain the alleged inconsistency - decision of Refugee Review Tribunal set aside.
Migration Act 1958, ss 420, 476
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 applied
Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 applied
Applicant “A” v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331 applied
Hurnam v Paratian [1998] 2 WLR 790 referred to
R v Immigration Appeal Tribunal ex parte Jonah [1985] Imm A R referred to
Adan v Secretary of State for the Home Department [1998] 2 WLR 702 referred to
Paramanathan v Minister for Immigration and Multicultural Affairs (unreported, 15 May 1998) referred to
Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 applied
Jit v Minister for Immigration and Multicultural Affairs (unreported, 15 May 1998) referred to
Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1998) 152 ALR 182 referred to
VIJAYAKUMAR SIVARASA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 135 of 1998
Burchett J
Sydney
11 June 1998
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 135 of 1998
BETWEEN:
VIJAYAKUMAR SIVARASA
ApplicantAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RespondentJUDGE:
BURCHETT J
DATE OF ORDER:
11 JUNE 1998
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The decision of the Refugee Review Tribunal be set aside.
The matter be remitted to the Refugee Review Tribunal, differently constituted, for determination according to law.
The respondent pay the applicant’s costs of the application.
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 135 of 1998
BETWEEN:
VIJAYAKUMAR SIVARASA
ApplicantAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
JUDGE:
BURCHETT J
DATE:
11 JUNE 1998
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an application to review a decision of the Refugee Review Tribunal refusing the applicant a protection visa. The Tribunal rejected his claim to be a refugee within the definition in the Convention relating to the Status of Refugees (“the Convention”) done at Geneva on 28 July 1951, which refers to 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 ...”.
Relying on s 476(1)(e) of the Migration Act 1958, the applicant says that the decision involved an error of law, being an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal. It is said that the Tribunal either misinterpreted the definition of a refugee “insofar as it only requires a well-founded fear of persecution”, or misapplied that definition to the facts as found by it. Particular complaint is made of the Tribunal’s use of a finding that the applicant was subjected to “indiscriminate cruelty”. The application also raised the ground in s 476(1)(a) that procedures required by the Act to be observed in connection with the making of the decision were not observed. In this regard, the applicant pointed to the requirement in s 420 to “act according to substantial justice and the merits of the case”, which he claimed the Tribunal failed to do when it rejected part of his evidence as inconsistent with that of a witness, his aunt, without giving him any opportunity to clarify the suggested inconsistency.
The applicant, a young man who comes from Jaffna in northern Sri Lanka, and is of Tamil ethnicity, claims to be a refugee from persecution in his homeland. The Tribunal accepted the substance of his story, which it found to be “consistent with the independent evidence”. This was that, after fleeing from the conflict in the north towards the end of 1994, he was arrested in Colombo in June 1995, in February and again in April 1996 (not February and April 1995 as the Tribunal’s reasons state in an obvious transcription error), and in January, June and October 1997. On each of these occasions, he alleged that he had been severely mistreated. He said he had been chained and beaten, including with a pipe filled with sand, and his life had been threatened. He had been forced, time and again, to pay bribes to obtain his release. The transcript reveals clearly enough that he became emotional at the hearing before the Tribunal when recalling his experiences, and that he was not urged to elaborate the details of the torture to which he said he was subjected on each occasion. Curiously, the Tribunal nevertheless referred to “reservations as to whether the applicant during his claimed detentions in February 1996, April 1995 [scilicet 1996], and in January and June 1997 suffered mistreatment to the extent he has alleged”. However, this comment is of no significance for the present application, since the Tribunal added that “in the absence of contrary evidence [it was] prepared to give him the benefit of the doubt”. That statement did not include the final occasion alleged by the applicant, which was in October 1997, very shortly before the applicant left Sri Lanka. The October 1997 arrest followed a particularly large bomb explosion in Colombo, when there is no doubt many people were arrested. The Tribunal accepted “that the applicant was rounded up following the bombing and held for up to two days”, but did “not accept his claim that he was taken away in an unmarked car, severely tortured or released on condition that he report weekly to the police.” It is difficult to understand from the Tribunal’s reasons why, having accepted the earlier occasions alleged by the applicant, it placed the qualification I have quoted on the October occasion. The only basis given for differentiation is the suggested inconsistency between his evidence about the last incident and the evidence of his aunt from Canada, an inconsistency which had nothing to do with events following his arrest, but only with the act of arrest itself. As this is a separate ground of appeal, I shall deal with it later in these reasons.
Whatever additional impact the allegations with respect to the arrest in October 1997 might have had, if they had been fully accepted, the torture, involving beatings and threats and the exaction of bribes to obtain his liberty, on the four earlier occasions with respect to which the Tribunal was prepared, despite its reservations, to accept his account, would plainly have constituted persecution, if inflicted for reasons of race or political opinion. The decision under appeal does not proceed on any other basis. It accepts, in the words of Mason CJ in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 388, that persecution involves “some serious punishment or penalty or some significant detriment or disadvantage”. But the Tribunal drew a distinction dependent on the motive for the infliction of the harm concerned. That was, of course, a matter it was proper to consider. As McHugh said in Chan at 429:
“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 Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 at 568, I said in a judgment with which O’Loughlin and R D Nicholson JJ expressed agreement:
“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.”
The Tribunal, having accepted “that violations of human rights continue [in Sri Lanka]” and that “the applicant came to the attention of the authorities because he was a young Tamil man from Jaffna”, made apparent in the following passages from its reasons, the particular distinction which it took. It said:
“Although 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 ... .
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 [this is a reference to the revolutionary Liberation Tigers of Tamil Eelam]. 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.”
There can be no difficulty with the proposition that necessary and reasonable enforcement, by the legitimate government of a country, of measures to combat terrorism will not amount to persecution, even if a race, or other group within the scope of the Convention, from which the terrorists come is targeted, and even if innocent members of that group unavoidably suffer distress, temporary detention or various forms of interference with their civic rights. But at least where such a group is targeted and its members are the victims of unnecessary and disproportionate harm inflicted on them, those so victimized will properly be described as persecuted. The position was stated by McHugh J in Applicant “A” v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331 at 354-355:
“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. 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.
However, where a racial, religious, national group or the holder of a particular political opinion is the subject of sanctions that do not apply generally in the State, it is more likely than not that the application of the sanction is discriminatory and persecutory. It is therefore inherently suspect and requires close scrutiny. In cases coming within the categories of race, religion and nationality, decision-makers should ordinarily have little difficulty in determining whether a sanction constitutes persecution of persons in the relevant categories. Only in exceptional cases is it likely that a sanction aimed at persons for reasons of race, religion or nationality will be an appropriate means for achieving a legitimate government object and not amount to persecution.”
See also the remarks of Davies J in Paramanathan v Minister for Immigration and Multicultural Affairs (unreported, 15 May 1998) at 4-5.
The Tribunal’s findings brought the applicant within the principle stated by McHugh J. The Tribunal expressly accepted “that the applicant came to the attention of the authorities because he was a young Tamil man from Jaffna”. It referred with acceptance to “independent evidence” which “emphasises that violations of human rights continue”, evidence which explicitly pointed to the Tamil community (from which the LTTE exclusively came) as the target of action. In the situation created by the LTTE, strong measures were clearly appropriate, but it could not be said that the torture of which the applicant spoke, in evidence accepted by the Tribunal, was “an appropriate means for achieving a legitimate government object [so as] not [to] amount to persecution”. The Tribunal 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 illegitimacy of its agents’ unauthorized actions in making “continu[ing]” use of “well documented” torture, or, as the Tribunal said, “mistreatment”. (That the Tribunal uses “mistreatment” as a euphemism is made perfectly clear by the context of its acceptance that this mistreatment, which it also describes as “indiscriminate cruelty”, would be persecution if inflicted for Convention reasons.) But the independent material accepted by the Tribunal showed that torture and the extortion of bribes were long-standing features of the conduct of the police and security forces. When, in that situation, the government of Sri Lanka enforced arrest and detention against Tamils without protecting them from the “well-documented” consequences, its actions demanded the “close scrutiny” to which McHugh J refers. This follows as a matter of law from his Honour’s statement of the principle. It is not, of course, to the point that the government may not have wished the police and security forces to behave in this way, since it continued the arrests and detentions without stopping them. As McHugh J said in Chan at 430 (in a judgment with which Mason CJ expressed his agreement):
“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 ... .”
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 the 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.
Even if the distinction taken by the Tribunal had effectively absolved the government of Sri Lanka from directly persecuting the applicant, without the need of any other finding, further difficulties would have remained in the Tribunal’s reasoning. Treating the actions of the police and security officers after the arrests of the applicant as the separate actions of those individuals, divorced from the arrests which (though justifiable in themselves, having regard to the emergency) were plainly directed at him because he was a Tamil, would still have raised the question whether these actions of the officers constituted persecution for a Convention reason, not by the government itself, but persecution the government was unable or unwilling to prevent. The Tribunal’s answer to this problem was to say “there is no suggestion that such mistreatment was directed in a discriminatory way towards any particular group such as young Tamil males”; it was rather “indiscriminate cruelty”, and “a generalised failure to adhere to basic standards of human rights”. There are two difficulties with this.
In the first place, it is not quite clear what the Tribunal meant by the statement “there is no suggestion that such mistreatment was directed in a discriminatory way towards any particular group such as young Tamil males”. The difficulty is not lessened by the fact that the Tribunal may have borrowed the expression of this finding from other cases where the evidence and submissions may or may not have justified it, but could hardly have been quite the same as the evidence and submissions in this case, which included the evidence of witnesses speaking precisely of the applicant’s experiences. (Cf Paramanathan at 11-12, in which, I should point out, the arguments I am now considering do not seem to have been advanced.) The Tribunal does not say the discrimination was not directed towards all Tamils. It could not have done so in this case on the uncontradicted evidence. Certainly, it could not possibly have said “there is no suggestion” that the mistreatment was directed in a discriminatory way towards Tamils, for this was repeatedly suggested before it, both in evidence and in submissions. What then can the Tribunal mean? Its specific expression is “any particular group such as young Tamil males”. Groups of that kind might also include Tamils hailing from Jaffna, unemployed Tamils in Colombo, and similar classifications more limited than the generality of Tamils. But what the evidence showed, without contradiction, was that the arrests and detentions were aimed at suppressing the rebellion of a group who were exclusively Tamil, the Liberation Tigers of Tamil Eelam, so that Tamils were targeted. While the LTTE might terrorize others, the applicant’s complaint was that he was arrested and detained because he was a Tamil, and tortured in relation to allegations of his involvement in the Tamil political organization, the LTTE. For the Convention to apply, it is not necessary that persecution be based on any narrower group than a race, and thus Tamils comprise a group within the Convention: cf Adan v Secretary of State for the Home Department [1998] 2 WLR 702 at 704-705, per Lord Slynn of Hadley, 712-713, per Lord Lloyd of Berwick.
It is perhaps desirable to make some reference to the documents that were before the Tribunal, in order to demonstrate that its statement “there is no suggestion that such mistreatment was directed in a discriminatory way towards any particular group such as young Tamil males” could not have been meant as a statement that there was no such suggestion in relation to Tamils generally. So I make a selection from the voluminous material. I reiterate that I am doing so to interpret the Tribunal’s language, not to make findings of my own (which it would not be open to me to do). Could the Tribunal have meant there was no suggestion the mistreatment was discrimination against Tamils, although it used the narrower phrase “towards any particular group such as young Tamil males”? The Tribunal had a submission in writing, on behalf of the applicant, which quoted the Sri Lanka Monitor of March 1997 as referring to “the 1995 murder in custody of 21 Tamils, whose bodies were found in Bolgoda and other lakes around Colombo”, and also quoted the Sri Lanka Monitor of April 1997, which reported:
“The authorities continue to breach emergency regulations in arrest and detention of suspects.” (Suspects would almost inevitably be Tamils, since the LTTE is a Tamil organization.)
The submission continues:
“In June it was reported that, ‘Police fear Black Tiger suicide cadres are hidden among the 150,000 Tamil refugees in the capital. ... Colombo newspaper Sunday Times says some policemen took the law into their own hands, treating every Tamil visitor to Colombo as a suspected terrorist’”.
The submission refers to an Amnesty International report of 1997 that “[t]housands of Tamil people were arrested ... . Torture and ill-treatment were widespread, particularly in military custody ... At least, 220 Tamil civilians were reported to have ‘disappeared’ and an estimated 50 others were extrajudicially executed ...”. The submission comments: “The above is clear evidence of the pervasive and persistent violation of human rights of Tamils in Colombo.” Later it adds: “Past history has shown that all Tamil civilians in the north are at risk of serious harm which goes beyond being merely caught in the civil war cross fire.” It then refers to previous statements of the Refugee Review Tribunal itself, in particular the following:
“The actions of the Army indicate that it presumes that all the Tamils are supporters or members: it is indiscriminate in its round-ups of civilians. ... Indeed, more than being just indiscriminate in its attacks on the civilian population, there is evidence that the army actively takes revenge on civilians in the area in retaliation for the actions of the LTTE. The brutal reprisals include murder, arson and rape and are carried out against unarmed civilians. Civilians suffer because they are Tamil because of a political opinion imputed to them, regardless of their actual political opinions.”
The submission also quotes from a United States Department of State Report for 1996:
“Disappearances at the hands of the security forces increased alarmingly, especially in the east and the north, though some occurred in Colombo. Most of these were associated with the arrest of suspected LTTE insurgents.”
Finally, the submission quoted the Sunday Leader of Sri Lanka of 2 October 1997:
“The National Identity Card, that glorious symbol of citizenship became an instrument of oppression through which Tamils were identified and targeted. Ironically the lack of proper identity documents also made Tamils liable for arrest”.
The applicant filed with the Tribunal a statutory declaration by an aunt of his who is a Canadian citizen. She was visiting Colombo when the bomb explosion occurred on 14 October 1997. Her statutory declaration states:
“The entire capital was searched and Tamil people were mistreated. Thousands of Tamils including women and children were arrested and detained by the Sri Lankan authorities without justification.”
She was herself questioned by the police, but was able to produce her Canadian passport. Nevertheless, she stated in her declaration: “As a Tamil I feared for my safety as well and decided to leave Sri Lanka immediately.”
The very decision of the Immigration Department under review by the Tribunal contained the statement:
“There is undeniably evidence which supports the claim of harm being directed against Tamils within Sri Lanka.”
It goes on to quote from a Canadian official report concerning “general treatment of Tamils in Colombo” which states that “hundreds of Tamils have been arrested, detained, stopped at checkpoints and subject to police raids” and refers to “reports of young Tamil women being harassed in September 1995 during police checks ... , of financial extortion, robbery and assault ... and of Tamils reported disappeared from Colombo ... or abducted”.
The report of the immigration inspector who interviewed the applicant on his arrival in Australia on 19 November 1997, which was before the Tribunal, included the following question and answer:
“IS THERE ANY REASON WHY YOU CANNOT RETURN TO THAT COUNTRY[?]
I HAD PROBLEMS WITH THE ARMY (SRI LANKA) IN COLOMBO, THEY SUSPECT ME AS A MEMBER OF LTTE, POLICE (CID) NAVY & ARMY SECURITY FORCES HAVE TORTURED ME ON MANY OCCASIONS AND THREATENED TO KILL ME AS A MEMBER OF LTT [sic], HE CLAIMED BECAUSE I AM TAMIL AND THEY ARE LAW UNDERTHEMSELVES [sic] ... .”
The applicant’s evidence repeatedly made it clear that the stated purpose of the tortures to which he was subjected was to extract a confession of involvement with the LTTE.
A situation report from the Commonwealth Information Service, bearing the date August 1997, was before the Tribunal. This document referred to a plea sent to the President of Sri Lanka about “problems faced by Tamil civilians” which asserted “that arrests and detention have become a routine affair in the day to day life of Tamils in this country” who “are inhumanly imprisoned without being told the reasons for their arrest”.
The material also includes a Country Information Report dated 19 December 1995 sent from Colombo to Canberra entitled “SAFETY OF TAMILS IN COLOMBO AND OTHER MATTERS”. This report plainly proceeds on the basis that the problems associated with arrests for questioning are problems of Tamils. It includes the statement:
“WHEN A SWEEP IS CONDUCTED, ONLY TAMIL PEOPLE WILL BE STOPPED FOR DETAILED QUESTIONING.”
It refers to “ETHNIC DIVISIONS IN THE COMMUNITY” and to “THE UNLAWFUL KILLING OF A NUMBER OF TAMILS WHOSE BODIES WERE FOUND FLOATING IN VARIOUS LAKES AND STREAMS AROUND COLOMBO”. In that connection, it refers to the arrest by the authorities of a number of security personnel in August, and says there have been “NO DISAPPEARANCES OF TAMILS REPORTED” since. But this was only a short period, and the continued harassment of Tamils in other ways appears from the same report. It refers to Tamils being refused entry to public offices, to a recent police directive in one district of Colombo closing “ALL BOARDING HOUSES ... HOSTING TAMILS”. It refers to “SEVERAL RECENT PUBLIC STATEMENTS”, including by the President, that “HAVE URGED THE SINHALESE COMMUNITY NOT TO HARASS TAMILS”, an indication that the government thought harassment directed at Tamils was continuing to occur.
The material before the Tribunal also included an Amnesty International report of August 1996 which contained the statement:
“Since the resumption of the armed conflict, more than 60 people have ‘disappeared’ after arrest by members of the security forces in the east and in Colombo ... .
All people reported ‘disappeared’ are Tamil; 55 ‘disappeared’ in 1995, a further seven since the beginning of 1996.”
The same report refers to “killings ... in apparent reprisal for the killings by the LTTE of two soldiers”, with “a group of soldiers ... shouting ‘death to the Tamils’.” It cites numerous cases of Tamils who complained of mistreatment or torture and refers to the arrest of “thousands of Tamil people”.
A further Amnesty International report dated November 1997 states:
“[A]s was often the case in the past, the security forces resorted to widespread ‘disappearances’ in reprisal for attacks on their members by the Liberation Tigers of Tamil Eelam (LTTE) ... .”
This report suggests that indeed the improvement in the conduct of security forces in the last four months of 1996 was by no means an end to their abuses, for it also states:
“Amnesty International continues to receive reports of ‘disappearances’, albeit on a smaller scale than in mid-1996.”
In the face of all this, the Tribunal’s use of restricted language, and its failure to make a finding that the officers did not torture the applicant because he was a Tamil, must be seen as deliberate. But if the applicant was tortured to make him confess to involvement with the Tamil terrorists, the LTTE, because he was a Tamil, that was sufficient for the purposes of his case. Therefore, the Tribunal erred in law when it failed to consider this aspect of the matter.
As I have indicated, there is yet a further problem with the Tribunal’s attempt to quarantine the torture and extortion to which it accepted the applicant had been subjected following the racially motivated (but in themselves justified) arrests and detentions for questioning. Even if the police and security forces were generally guilty of “indiscriminate cruelty” and “generalised failure to adhere to basic standards of human rights”, it would not follow, as a matter of logic, that the applicant’s fear of such treatment for reasons of race and imputed political opinion would not be well-founded. For it to be well-founded, there need only be a real chance that he would be persecuted for reasons of his race or political opinion. As McHugh J said in Chan at 429:
“[A] fear may be well-founded for the purpose of the Convention and Protocol even though persecution is unlikely to occur. ... [A]n applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be shot, tortured or otherwise persecuted. Obviously, a far-fetched possibility of persecution must be excluded. But if there is a real chance that the applicant will be persecuted, his or her fear should be characterized as ‘well-founded’ for the purpose of the Convention and Protocol.”
This test was accepted in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 277, where it was stated in the joint judgment of Brennan CJ, Toohey, McHugh and Gummow JJ that “it is clear that the test in Chan necessitates speculation in the sense of prediction, in other words, an assessment of the future. That is implicit in the formulation ‘real chance’.” It is a test to be applied broadly, for the Convention itself is to be construed broadly: Adan v Home Secretary at 707. Given this test; given the Tribunal’s acceptance that the applicant had been subjected to torture and extortion; and given its finding that the police and security forces were guilty of “indiscriminate cruelty” and “a generalised failure to adhere to basic standards of human rights”, the question had to be faced by the Tribunal whether there was not a real chance that if the applicant returned to Sri Lanka he would be again arrested as a Tamil suspected of involvement in the LTTE, and a cruel officer, of the same mind as those who cried “Death to the Tamils”, might again inflict torture on him. The Tribunal thought that “such abuses are no longer so widespread as before”, but this statement of the matter acknowledges that they are still in some sense widespread. Only the degree has seen some improvement. And if it is required to speculate as to the future, the speculation cannot be ignored or just brushed aside that the situation, which has changed over the years to some extent several times, may again worsen. The Tribunal’s findings as to the attitude of the security forces makes it very difficult, in a climate of suspicion specifically directed at Tamils as the community from whom the LTTE is drawn, to avoid the force of the inference that there is a real chance the applicant will at some time be tortured or even killed, not simply out of unmotivated cruelty, but because he is a Tamil to whom the politics of the LTTE may be imputed, and the more readily because a number of the officers are cruel. Indeed, it would be a startling proposition that the applicant would have less real chance of being persecuted, upon the next occasion when reprisals are contemplated, because the security forces are indiscriminately cruel in their general behaviour. If that argument had been addressed to Blaise Pascal, it would have called forth a new and yet more ironic Provincial Letter. Looking more particularly at the applicant’s own position, as Davies J pointed out in Paramanathan at 5, the inappropriate violence to which he has been subjected may, in itself, suggest an inference that race or imputed political opinion provided a motive for the actions the officers took where he was concerned.
When the matter is looked at in this way, it seems very significant that the Tribunal’s specific finding concerning the applicant’s fear of persecution, so far as it is based on the tortures inflicted on him in 1995, 1996 and in January and June of 1997, is couched in quite restricted terms. After the findings I have already quoted, the Tribunal concludes:
“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, imputed political opinion or any other Convention reason should he return to Sri Lanka (emphasis added).”
It will be observed that this finding refers only to persecution “by the authorities”, although it is founded on a distinction, made in the earlier passages I have quoted, between the actions of the authorities and the unauthorized cruelty of individual officers. The Tribunal simply did not address the point on which it would have been extremely difficult to reject the well-founded nature of the applicant’s fear. In failing to address fear founded on a real chance that officers investigating LTTE atrocities would torture him for reasons of race or imputed political opinion, and that the government would be unable or unwilling to protect him from them, as it had proved to be in the past, the Tribunal erred in law. It did not deal with the one question which most directly arose on the view of the facts that it took. Its approach involved “an incorrect application of the law to the facts as found” within the meaning of s 476(1)(e).
I turn to the procedural ground, which relates to the applicant’s evidence, supported by his aunt from Canada, of his arrest following the bomb blast in October 1997. Of this, the Tribunal said:
“The applicant’s claims that in October 1997 he was taken away in an unmarked vehicle, assaulted and taken to a police station where he was forced to admit that he was an LTTE member conflict with the evidence of his aunt from Canada, who has stated that she saw the applicant at his house during the search operation mounted in Colombo following the bombing of the commercial Fort district on 15 October. The aunt has also stated that the applicant telephoned her two days later, on 19 October, which would indicate that even if he had been detained and questioned he had been released within two days. Had he been of interest to the authorities he would not have been released, nor would he have been able to leave the country on a passport issued in his name the following month. This conflicting evidence raises the question of the applicant’s credibility.”
I have found it very difficult to understand this part of the Tribunal’s reasons. As the applicant said he was arrested at his house, the problem is to appreciate what inconsistency the Tribunal perceived in the fact that, before he was taken away, his aunt should have seen him there surrounded by police. She referred, in her statutory declaration, to visiting her nephew at his house to enquire about his safety “[t]wo days after the incident” of the bomb explosion in Colombo on 14 October 1997. She said:
“By the time I arrived, the house where he was residing was rounded up by the army and the police and my nephew was severely interrogated. I was also interrogated by the police officers. Fortunately I had my Canadian passport with me and therefore I was not harassed ... . ... After I was questioned I was ordered to leave the house as they wanted to continue with their interrogation of my nephew. I was very concerned about my nephew’s safety but there was nothing I could do in the presence of the army and police personnel.”
The applicant’s statement forwarded to the Department on 28 November 1997 contained the following account:
“In October 1997 some unidentified persons came to my house and forcefully took me into a jeep blindfolded. I was taken away around 5-30 in the evening. I was taken to a place where I was severely assaulted. I was given only water and every time I asked for some water they assaulted me severely before giving me the water. I was hit on my head, chest and stomach. I still have marks on my body. They wanted me to confess that I was an LTTE spy and I was working for the LTTE in Colombo. When I refused to do so I was severely assaulted. As I Had no connections what-so-ever ever in Colombo and no friends no employment no family connections in Colombo I was more suspected. I was again taken back to Modara police and where I was again interrogated. I was accused of being an LTTer. I was forced to admit that I was a tiger, supporting the LTTE movement and I was threatened that if I did not I would be killed. My Land-lord was a very sympathetic man. He used his influence and signed for my release and it was arranged to pay money to the police for my release. On the same evening the police came home and collected the money, a sum of Rs25,000.”
In the same statement, he had earlier referred to being arrested in June 1997 “whilst I was having my dinner at a small restaurant in Modara. I was kept for one day at the police station and was severely assaulted.”
When the applicant gave oral evidence before the Tribunal, he described an incident in January 1997. He was then asked: “Just before you left in October, can you describe what happened then?” He replied: “Well, after this particular incident [ie the one in January 1997] I was arrested again while I was having my meals [sic] in a restaurant. While I was having my meals the area police came and arrested me. They confiscated my money. There too I was beaten up and later released.” He was asked: “Tell me about which date this was?” and answered “’96 June, no ’97.” The Tribunal member then said: “I was asking you about October.” The applicant replied:
“On the 24th of October I was arrested. That is the worst experience I had in my life and with that ... well, after that incident I decided that I should leave that country and subsequently I left immediately. On the 24th around 5-30 in the afternoon they came and took me. This is well known, people know about this: white van without any number plate. If someone is abducted then that person will never ever come back. The history says that I am the only person who returned. Well, the persons taken by them never returned up to now. I was taken and severely tortured. I don’t know how to describe because horrible. It took place on the 6th floor. When they took me they blindfolded me and tied my hands. That whole area came to the conclusion that I’ll never return. I was pushed by my neck. And two of them sent [?sat] on me. That is how I was taken. Well I had a feeling at that time that two third of my life had already gone. Then they took me and well, I simply don’t know how to describe this.”
He was questioned as to an incident that caused these “round-ups” to occur and referred to the “devastating bomb blast”, and then there seems to have been an interruption because he was sobbing. He said he was held for two days.
In all this, the one obvious basis for the suggested contradiction between the applicant’s evidence and his aunt’s is the mistaken answer about the arrest in the restaurant. But that answer was clarified as relating to June, not October. The applicant had always complained of an earlier arrest in June, as of other arrests still earlier than that. Consistently, his account of the arrest in June had been that he was arrested when at a restaurant. Once it is appreciated that his account of the October arrest was that he was taken from his home, not from a restaurant, the inconsistency disappears. According to his aunt’s account, she arrived at the house to find it surrounded by police. The applicant was still there at that stage, but this is not at all inconsistent with his having been taken away after the aunt was ordered to leave. In fact, the Tribunal accepted “that the applicant was rounded up following the bombing and held for up to two days”.
That he was released within two days, but upon condition of the payment to the police of a substantial bribe, was, of course, completely in keeping with his accounts of earlier arrests, which the Tribunal accepted.
The Tribunal does not suggest that the inconsistency it detected related to dates. It is the account which the Tribunal suggests was inconsistent with that of the aunt. Certainly, the date 24th October appears to be an error, either of recollection or in the transcript. But the occasion is clearly identified by reference to the bomb blast, both by the applicant and by his aunt.
As I have said, the obvious inconsistency to which the Tribunal perhaps referred was the inconsistency between arrest at the applicant’s house and arrest at a restaurant. However, a careful examination of the transcript and the statements makes it quite clear that this inconsistency was the result of a misunderstanding by the applicant of a question he was asked, and was not a real inconsistency at all. Had the Tribunal put to the applicant the difficulty which it saw in the evidence, so as to give him an opportunity to deal with it, there can really not be any doubt that he would have cleared it up at once. Another possibility is that the Tribunal perceived an inconsistency in the failure of the applicant to mention an interrogation at his house before he was taken away. But if that had been put to him by the Tribunal, he might reasonably have replied that he was not complaining about questions openly asked, without torture, but of the cruelty inflicted on him when he was taken away. In other words, given an opportunity, he could have made a convincing answer.
But the Tribunal has never identified the inconsistency, and it gave the applicant no opportunity to clarify whatever it was that it saw as the inconsistency. In this respect, it failed to “act according to substantial justice” within s 420, being thus in breach of a statutory procedural requirement. The operation of s 420, and its place in the statutory scheme for the review of tribunal decisions was explained in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300, and by Davies J in Jit v Minister for Immigration and Multicultural Affairs (unreported, 15 May 1998) at 5-6. See also Sun Zhan Qui v Minister for Immigration and Multicultural Affairs (1997) 151 ALR 505. An example of the way in which a provision of this kind can operate as an effective remedy for serious procedural error will be found in Hurnam v Paratian [1998] 2 WLR 790, where a denial of an opportunity to make submissions was held by the Privy Council to have invalidated a hearing, not by virtue of the principle of natural justice, but under a provision of the Constitution of Mauritius which is quite similar to s 420: it provides that a person’s case “shall be given a fair hearing”.
For all these reasons, the decision of the Refugee Review Tribunal must be set aside with costs. Counsel for the applicant argued that I should make a declaration, but although that course may occasionally be justified even in a refugee matter: R v Immigration Appeal Tribunal ex parte Jonah [1985] Imm A R 7 (a decision which was treated as authoritative in Chan at 431 - see also Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1998) 152 ALR 182 at 194-195), where Nolan J (as Lord Nolan then was) held (at 13) that a well-founded fear of being persecuted “follow[ed] as a matter of law” from findings of fact that had been made, and although the Tribunal’s findings in this case bring it close to the line, I think the ultimate conclusion of fact remains to be reached. Accordingly, I remit the matter to the Tribunal, differently constituted, for determination according to law.
I certify that this and the preceding seventeen (17) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Burchett
Associate:
Dated: 11 June 1998
Counsel for the Applicant: Mr R Beech-Jones Solicitors for the Applicant: Nan Solicitors Counsel for the Respondent: Ms A F Backman Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 6 May 1998 Written Submissions lodged: 13, 18 May 1998 Date of Judgment: 11 June 1998
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