Thevar v Minister for Immigration and Multicultural Affairs

[1999] FCA 1182

FEDERAL COURT OF AUSTRALIA

Thevar v Minister for Immigration & Multicultural Affairs [1999] FCA 1182

MIGRATION - application for review from the Refugee Review Tribunal (“RRT”) refusing a protection visa - applicant was a Sri Lankan national - whether the applicant had a well-founded fear of persecution for a convention related reason - RRT did not accept the applicant’s evidence, decision based on all other material - consideration of the situation for Tamils in Colombo on the material before the RRT.

Migration Act 1958 (Cth) s 36(2), s 476(1)(c), s 430

Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247 Followed
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 Applied

RAVINDRAN RAMIAH THEVAR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NO N509 OF 1999

COOPER J

SYDNEY
27 AUGUST 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N509 OF 1999

BETWEEN:	RAVINDRAN RAMIAH THEVAR Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	COOPER J
DATE OF ORDER:	27 AUGUST 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.The applicant pay the respondent’s costs of and incidental to the application, including reserved costs, if any, to be taxed if not agreed.

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	N 509 OF 1999

BETWEEN:	RAVINDRAN RAMIAH THEVAR Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	COOPER J
DATE:	27 AUGUST 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application under s 476 of the Migration Act 1958 (Cth) (“the Act”) for review of a decision of the Refugee Review Tribunal (“RRT”) given on 3 May 1999. The RRT in its decision affirmed the decision of a delegate of the Minister for Immigration and Multicultural Affairs, (“the delegate”) of 21 November 1997 to not grant a protection visa. The RRT was not satisfied that the applicant had a well-founded fear of being persecuted for a convention reason if he returned to Sri Lanka.

2. The applicant arrived in Australia on 15 February 1997 and applied for a protection visa on 24 February 1997.  The applicant claims to be a Sri Lankan national and produced to the Tribunal his Birth Certificate and two certificates regarding his education.  However, the applicant arrived in Australia on a genuine Indian passport.  The Department of Immigration and Multicultural Affairs (“the Department”) assessed the applicant as an Indian national.  The applicant claims that he obtained the Indian passport by paying for it.  The RRT, based on the material before it, was prepared to accept for the purposes of the review that the applicant was a national of Sri Lanka.

3. The applicant seeks review of the decision on the following grounds :

   “1.      The Tribunal erred in law, being an error in the interpretation of the law, or the application of the law to the facts as found.

   Particulars

   (a)The tribunal found that those at ‘particular risk’ of being arrested in the context of the security measures in force in Colombo, Sri Lanka, are young Tamils recently arrived from the north or east of the country, but failed to make a finding as to whether the applicant faced a degree of risk amounting to a well founded fear of persecution in Colombo or whilst travelling to, or in Vavuniya.

   (b)The Tribunal failed to fully consider the applicant’s case on the basis of all relevant issues arising on the material before it.

   2. The Tribunal failed to observe procedures required by s 430 of the Act to be observed.

   Particulars

   (a)Failure to address and evaluate evidence and material which went to the issue of the risk to the applicant for reason of his race.

   3. The decision was not authorised by the Act.

   Particulars

   (a)The Tribunal failed to exercise its jurisdiction, by not fully considering and addressing the applicant’s case on the basis of all relevant issues arising on the material before it.”

4. The applicant, in proceedings before the RRT, claimed to have been born in Colombo, Sri Lanka on 29 September 1963 and to have moved to Vavuniya in the north of the country with his family in 1977 as a result of ethnic riots in Colombo that year.  He also gave evidence that he finished his schooling in Vavuniya in 1979, thereafter he went into business as a commercial artist and freelance painter.  The applicant claimed an entitlement to a protection visa on the basis that he had a well-founded fear of being persecuted by reason of his race (Tamil), or any political opinion (support for the Liberation Tigers of Tamil Eelam (“LTTE”), or the Eelam People’s Revolutionary Liberation Front (“EPRLF”), or any other Tamil movement) that may be imputed to him on the basis of his race, if he returned to Sri Lanka at the time of making the application or in the reasonably foreseeable future.

5. In support of his claim the applicant gave evidence of acts of violence and detention perpetrated against him at various times by the police in Vavuniya, by the Sri Lankan Army in the north and eastern areas of Sri Lanka, and by the Indian Peace Keeping Force because he was a Tamil.  Also, they were seeking information from him because of a perceived association he had with the LTTE.  He gave evidence of being abducted by both the LTTE and the EPRLF, originally to obtain his services as a sign writer and later because of his contacts with the police.  These contacts gave rise to a suggestion in the Tamil organisation that he was a police informer.

6. For reasons which are set out in the decision of the RRT, the Tribunal member rejected the evidence of the applicant.  The Tribunal member said :

   “… Having regard to the impression the Applicant made upon me at the hearing before me and the many inconsistencies in his evidence I have no doubt at all that his account of his past experiences in Sri Lanka has been fabricated for the purpose of providing support for his application for a protection visa. …”

7. The applicant did not contend on the hearing of the application that this conclusion on the part of the RRT was attended with reviewable error.

8. Having rejected the claims of the applicant of actual personal persecution, the RRT concluded :

   “… Setting aside the Applicant’s claims, which I have rejected above, there is nothing in the evidence before me to suggest that he will not be able to live safely in Vavuniya untroubled by the police, the Sri Lankan Army, the LTTE, the EPRLF or any other Tamil movements.  I accept that in order to reach Vavuniya the Applicant will have to pass through Colombo where Sri Lanka’s international airport is located but, as I put to him in the course of the hearing, I do not consider that he will be at risk of being arrested in the context of the security measures applying in Colombo.  The Applicant is over 35 years of age, he was born in Colombo, and he claims that he speaks fluent Sinhala.  All the information available to me suggests that those at particular risk of arrest in Colombo are young Tamil men and women who have recently travelled from the North or the East (see DFAT cables CL38234, dated 15 December 1995, CX12970, CL463, dated 24 January 1997, CX21595, and CL821, dated 13 February 1998, CX28768;  Amnesty International, Sri Lanka:  Wavering commitment to human rights (August 1996), page 21;  Danish Immigration Service, report referred to above, pages 13, 19 - 20).

   I am not satisfied that the Applicant has a well-founded fear of being persecuted for a Convention reason if he returns to Sri Lanka. It follows that he is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Consequently the Applicant does not satisfy the criterion set out in subsection 36(2) of the Migration Act for the grant of a protection visa.”

9. The applicant submitted that just because others were at a greater risk than the applicant did not mean that the applicant could not himself have a well-founded fear of persecution for a convention reason (even though others were at greater risk).  In the result it was submitted that the RRT looked at the position of others and applied their circumstances to the applicant when the proper test required that consideration be given to the circumstances of the applicant alone.  In so doing it was submitted the RRT failed to formulate the correct legal question and failed to address that issue.

10. It was also submitted that the RRT failed to consider the applicant’s case after it had made adverse findings as to his credit and thereby erred in law and made a decision not authorised by the Act or Regulations in breach of s 476(1)(c): Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247.

11. The failure of the RRT to assess and evaluate the material before the RRT which it was contended demonstrated that Tamils in Sri Lanka generally had a well-founded fear of persecution by reason of their race was, it was submitted, in breach of s 430 of the Act.

12. The approach taken by the Tribunal and its reasoning in respect of the applicant’s application appears from its reasons as a whole and is explicable by reference to the evidence which it accepted.

13. The principal source of material relied upon by the RRT was the Country Information Report No 67/99 prepared by the Department of Foreign Affairs and Trade dated 5 March 1999 and entitled “SRI LANKA:  CONDITIONS IN DETENTION - CIS REQUEST NO. LKA-AC694”.  The background to the preparation, which appears from the report itself, recorded the setting aside in December 1998 by Full Courts of this Court of decisions not to grant protection visas to three young male Tamils from Jaffena.  After identifying and summarising in paragraphs A to H inclusive of the background section of recent submissions from overseas sources as to the maltreatment of detainees in Sri Lanka, seven questions appear in respect of which answers were sought.  These questions were :

    “Q1To what extent do large-scale sweeps still occur in Colombo, the north and the east?  As a result of these, how many people are detained for over two days, and of those detained, (a) for under two days and (b) for over two days, how high is the incidence of serious mistreatment (ie torture)?  Is the incidence of mistreatment in the above cases comparable to physical mistreatment in relation to that of common criminals in custody (including that of Sinhalese)?

    Q2Are Tamils targeted at checkpoints?  Is this attributable to the fact that the present insurgency is Tamil-based?  What is the incidence of detention following routine ID checks, eg at checkpoints?

    Q3Are ethnic Tamils and ethnic Sinhalese treated differently in custody?

    Q4Is mistreatment of detainees in defiance of Government policy?  Please give examples of measures being taken to safeguard welfare of detainees.

    Q5How effective are the safeguards introduced last year (para 4F refers) in minimising the abuse of power of the police and the security forces?

    Q6Have the authorities taken any steps to curtail the abuses of the homeguards and anti-LTTE militant Tamil groups?

    Q7Are delays which result in lengthy detention (police bribery, legal delays, cumbersome court processes) in ER and PTA cases similar to the general court caseload?”

14. Question 1 was answered as follows :

    “A1.    Arrest and detention in Colombo

    Large-scale cordon and search operations have generally followed major security incidents in Colombo.  The last large-scale operation took place on 1 April 1998 after the Maradana bombing of 5 March, which killed 40 people and wounded 150.  The operations ceased after widespread protest and public recognition by the Attorney-General that only good security intelligence, not mass arrests, would uncover LTTE operatives.

    Human rights groups report that the number of arrests under the Emergency Regulations (ER) and Prevention of Terrorism Act (PTA) in Colombo has decreased over the last few months.  We cannot obtain information on the precise number of people arrested in a given week, because no agency, official or non-official, is keeping consistent, accurate records.  However, reliable observers estimate that around 95 percent of people arrested are released within 24 hours.  Of the five percent who remain in detention, some may be released within days and others may be held for a much longer period of time.

    Arrest and detention in the north and east

    The pattern of large-scale arrests after a major security incident also applies in the north and east.  We are not able to obtain a clear estimate of the percentage of people who remain in detention for longer than two days in these areas.  However, under the ER, people can be detained for longer periods in the north and east than in Colombo, before being taken before a magistrate.  The specified detention period is up to 60 days before the police require a judicial order for extension in the north and east and 21 days in Colombo and other areas where the ER are in force.

    Throughout Sri Lanka, around 1,500 people are currently detained under the ER.  Around 300 people are detained under the PTA, which allows for detention until the conclusion of a trial.  In most cases, people are arrested and detained under the ER, although for extended detention the provisions of the PTA are employed.  The PTA applies throughout the country;  the ER has been in force throughout the country since 4 August 1998.  At various times different geographic areas are added and removed from the list of places under emergency rule, but Colombo, adjoining areas and the north and east are routinely included.

    Torture

    Human rights lawyers advise that most allegations of torture come from people arrested under the ER and PTA;  not those held under the common law.  Most complaints of torture relate to the period of interrogation, which can last from a matter of hours to a week.  The general objective of torture during interrogation is to extract a confession.  Under the PTA, confessions made to the police are admissible in court, whereas under the common law only confessions made voluntarily to a magistrate are admissible.  An estimated 20 percent of High Court trials under the PTA are thrown out where the judge believes that the confession was extracted through torture, and the confession is the only evidence against the accused.  Where a person is convicted under the PTA, in most cases the confession, which may have been extracted through torture, is the only evidence against the defendant.  The defendant bears the burden of proof to establish that the confession was not made voluntarily.

    Human rights groups advise that of the ER and PTA detainees they visit or represent in Colombo, around 40 percent either complain of being tortured or show signs of torture.  Over recent months, reports of torture in detention in Colombo have declined in line with the decrease in the number of arrests.  In the east of Sri Lanka, the estimate is closer to 60 percent and in Jaffna, it is around 70 percent.

    Physical mistreatment not amounting to torture (ranging from pushing and shoving to beating) is not uncommon in Sri Lankan Law Enforcement.  It occurs across all categories of prisoners, inclusive of people arrested under the ER, irrespective of their ethnicity.

    The overwhelming majority of people arrested under the ER today are Tamils in connection with the LTTE activities.  As most incidents of torture are reported in the context of arrest under the ER, those most likely to be tortured are Tamils.  By contrast, in the late 1980s, when the ER were employed against JVP suspects, those most likely to be tortured were Sinhalese youth.  The JVP is a southern Sinhalese Marxist organisation, which led violent insurgencies against the State in 1971 and again between 1988 - 1990.  It is now a registered political party.”

15. Question 2 was answered as follows :

    “A2.
    People are stopped randomly at checkpoints in Colombo and asked to show their national identity cards (NIC).  Those with Tamil names are questioned.  If their NIC identifies Colombo as their place of birth, they will almost always be allowed to move on, unless it is considered that there is some reason to suspect them.  (An estimated 500,000 Tamils live in Colombo, almost half the population of the city.)  If the NIC identifies the north, particularly Jaffna, or the east, particularly Batticaloa, as the place of birth, they will be required to explain their presence in Colombo.  If they cannot do so to the satisfaction of the security personnel, they may be taken into custody for further questioning.  The incidence of detention following ID checks at checkpoints will depend on how many people fitting the high risk profile are checked over a given period.  No observers could provide an estimate of exactly how many people are arrested and detained each day.

    At checkpoints in the north and parts of the east of Sri Lanka, people of all ethnicities are checked routinely and will be taken into custody if the security forces or the police consider they have reason to suspect them.  However, human rights groups inform us that most arrests in the north and east are made during cordon and search operations on the basis of information provided by informants.  Arrests at checkpoints are less common than in Colombo.

    Tamils are targeted at checkpoints because the present insurgency is Tamil-based.”

16. Question 3 was answered as follows :

    “A3.
    People in custody are generally not treated differently on the basis of their ethnicity.  Resentment between Tamil and Sinhalese remand prisoners sometimes arises because the Sinhalese on remand for common law offences perceive that Tamils detained under the PTA and ER receive more attention from outside agencies.  Some NGOS provide clothing and toiletries to Tamil detainees and Tamil politicians highlight the situation of Tamils detained under the PTA and ER.  As a result of pressure from outside agencies, Tamil detainees sometimes have their cases dealt with more quickly than common law detainees.

    Wherever possible, people remanded under the PTA and ER are held separately from those remanded for common law offences.  This is not always possible due to overcrowding.  Overcrowding in remand centres has become a problem because courts are increasingly refusing to grant bail to common law suspects, or setting bail too high for both common law and ER suspects.  (Under the ER, the magistrate can grant bail unless the Attorney-General objects).  There are many people in remand for very minor common law offences, because they cannot afford bail, or they cannot find a person who meets the court’s requirements to act as a surety.  Another factor is that the government has stopped issuing amnesties, a practice which periodically relieved overcrowding in prisons.

    Prison visits is the only area were [sic] people remanded under the PTA and ER are treated differently to those on remand for common law offences.  Visits to PTA and ER remand prisoners, who are almost all Tamil, are restricted under the ER to one visit by one nominated person per week, for security reasons.  Other remand prisoners are entitled to one visit by up to three people per day.”

17. Question 6 was answered :

    “A6.
    The area where the activities of non-LTTE Tamil militant groups are causing the most concern is in Vavuniya.  The PLOTE (People’s Liberation Organisation of Tamil Eelam) and TELO (Tamil Eelam Liberation Organisation) cooperate with the armed forces to fight the LTTE, and at the same time are fighting each other for economic control of the area.  The government recently ordered these groups not to carry firearms in public and introduced restrictions on the location and number of their camps.  The military commander in the area recently met with PLOTE and TELO leaders and they reportedly agreed that other than their personal bodyguards, members of the groups would not carry arms.  It is too early to say whether these measures will be effective in Vavuniya.  The army has been more successful in controlling non-LTTE Tamil militants in Trincomalee and Batticaloa.

    Homeguards are a completely separate category to the non-LTTE Tamil militant groups (see O.CL819).  They come from various ethnic groups and are employed to protect their villages in areas bordering LTTE and government-controlled areas.  Sinhalese homeguards, in particular, are very vulnerable to LTTE attacks.  Homeguards are not organised or influential in the way Tamil militant groups are.  There are cases where homeguards have been implicated in criminal activities, such as the Thampalakaman case of February 1998, where a group of police and homeguards were charged with the murder of eight civilians, but these are isolated incidents.”

1. As appears from the reasons of the RRT, the Tribunal member had regard in part to a report of Amnesty International dated August 1996 entitled Sri Lanka: Wavering commitment to human rights.  The RRT referred to page 21 of the report under the heading “Arbitrary arrests and detention” where it was stated :

   “Since the resumption of the armed conflict, thousands of Tamil people have been arrested, in particular in Colombo and in the east, for suspected contact with the LTTE.  A large majority were released within 24 hours, or at least within two or three days, but a significant number have been held without charge or trial for weeks or months.

   In Colombo, the number of arrests were particularly high in the aftermath of attacks attributed to the LTTE in the capital.  For instance, after the attack on the oil depots at Kollonawa in October 1995, at least 1,000 people were reported to have been arrested in the space of five days.  After the bomb attack on the Central Bank in late January 1996, another wave of arrests took place.  According to HRTF, during February 1996, 411 people were arrested in Colombo.

   Among those most at risk of arrest were young Tamil men and women, particularly those who had recently travelled to Colombo from the north and east.  Tamil young people of Indian origin who traditionally live in the up-country area but travel to Colombo to seek employment were also frequently reported to have been arrested.”

2. The RRT also had regard to a report of the Danish Immigration Service with respect to a fact-finding mission to Sri Lanka from 21 February to 7 May 1997.  That report said (at pp 17 - 20) :

   “3.      Are Tamils subject to special checks and, if so, on what scale and how intensively (eg are private homes and boarding houses searched)?

   All interviewees were able to report that everyone in Sri Lanka was subject to checks on account of the security situation obtaining.

   The measures involved included checkpoints on public thoroughfares, round-ups, searches of premises and searches of vehicles for any weapons and/or bombs.  However, Tamils formed the same target for such checks.

   The intensiveness of checks depended on whether in the authorities’ view an attack by the LTTE was imminent or one had just taken place.  Most interviewees accordingly reported that the situation in Colombo had been very tense immediately after about 100 people were killed by a bomb at the central bank in Colombo’s financial district in January 1996 and after a similar number were killed by a bomb in a train in July 1996.  In the period following those events, the authorities were on a maximum alert and all of the checks in question were put into effect.  After a while, the tension subsided again, relatively speaking.  Even after attacks in Jaffna or other parts of the country, checks in Colombo were stepped up.

   The Centre for Society and Religion explained that checks were tightest for people travelling from Batticaloa, Anuradhapura or Trincomalee, in particular, by bus to Colombo, where more often than not everyone would be checked on account of the risk of the LTTE attempting to infiltrate a suicide squad into Colombo.

   The Family Rehabilitation Centre knew of cases of young Tamil men in Colombo being required to report to the police weekly.

   Checkpoints

   There are very many checkpoints, both fixed and mobile ones, in Colombo.  None of the interviewees could say how many there were at any time.  Such checkpoints could be manned by the police, the army, the air force or the navy.  Owing to the offensive against the LTTE in the north, some checkpoints were staffed by women.  Checkpoints were located both on ordinary roads and at strategic points such as the airport, military installations, private homes of influential people (Tamils, Sinhalese and Muslims alike) and the docks.  Some major roads in Colombo were closed at 19.00 or 21.00 so as to save on manpower at checkpoints on those stretches.

   According to both the authorities and private organizations, the main purpose of checkpoints and the other checks carried out was to detect people either belonging to or working for the LTTE.  In addition, some political violence unrelated to the LTTE also took place in the run-up to the local elections on 21 March 1997.

   At a checkpoint, everyone stopped was asked to show his or her identity card (as mentioned in 1 above).  If the name showed the person to be a Tamil, in some NGO’s view, this would in itself be sufficient for him to be questioned further.  Other NGOs thought that only Tamils born in Jaffna risked further questioning.  Some NGOs pointed out that young Tamil men and women, especially, formed a particularly vulnerable group and others took the view that Tamils from the lower social classes were at greater risk of further interrogation than middle-class Tamils.

   The Family Rehabilitation Centre, for instance, said that in the past only unemployed young Tamil men had risked arrest, but Tamils from better social backgrounds were now also at risk.  An example given was of a 60-year old woman who had been detained for three weeks in Colombo (Cinnamon Garden police station).  Having said that, if a young man had a job in Colombo, he would not normally be harassed by the police.

   INFORM thought that it was a coincidence that some people were detained several times for identity checks, but this contributed to a general feeling of insecurity among Tamils in Colombo.

   The Centre for Society and Religion made the point that priests could also attract suspicion, as some priests had tried to take prohibited items (not arms) into LTTE-controlled areas.  This applied regardless of whether the priest was Tamil or Sinhalese.  It thought that problems would arise only for anyone not observing the rules, eg anyone not carrying his identity card, but the fact of coming from Jaffna was not a problem in itself.

   Deepika Udagama, the Director of the Centre for the Study of Human Rights at Colombo University, took the view that the police and the armed forces generally saw every Tamil man stopped by them at a checkpoint as a potential LTTE member.  She made the point that social class was also a factor here and that women, too, had recently been suspected of LTTE activism.

   The Home for Human Rights regarded it as a problem per se if a Tamil stopped at a checkpoint did not speak any language other than Tamil.  A human rights campaigner expressed the view that even middle-class Tamils from Colombo might be harassed at checkpoints, but a colleague of his did not think that to be the case.  Both agreed, however, that Tamils would be detained if there was anything unusual or suspicious about their identity cards.  MIRJE lawyers considered that the police and armed forces in Colombo regarded all Tamil men as potential LTTE members.  This applied especially if a young man was out of work or a student, or if he had just come from the north of the country.

   The Institute of Human Rights pointed out that some Tamils were arrested solely on grounds of their race and Tamils could be arrested even if their papers were in order.  Having said that, it believed conditions in this respect to have improved in Colombo.

   Neelan Tiruchelvam reported that all Tamils, even middle-class ones, faced harassment at checkpoints, but he was particularly concerned for the safety of young men.

   A number of organizations explained how Tamils not originating from Colombo would be questioned about the purpose of their stay in Colombo and whether they were registered with the local police.  If the police officer at a checkpoint (or the soldier, where a particular checkpoint was manned by the army) became suspicious for any of the above reasons, they could be arrested and taken to the nearest police station.  Anyone arrested by the armed forces had to be handed over to the police within 24 hours (for further details, see section 11.A).”

3. The other material to which the court was referred on the hearing of the application was in the main specific instances of persecution falling within the general statements as to the prevailing conditions reported in the various materials before the RRT.

4. In the reasons of the RRT it is recorded, so far as is presently relevant, the course of questioning of the applicant by the Tribunal member :

   “I asked the Applicant why he did not consider that he could live safely in Colombo.  He said that he had already been arrested on many occasions.  He said that even now the war was continuing.  He was a Tamil and he had been staying in Vavuniya.  People of his age were suspected of being members of the LTTE and were arrested.  If he returned to Sri Lanka he would not stay alive.  I put to him that he had said that he had been born in Colombo and spoke fluent Sinhala and that he had skills as a commercial artist and sign writer.  The Applicant said that this was correct.  I put to him that the information available to me suggested that it was young Tamils recently arrived from the North or the East who had problems in Colombo:  see Australian Department of Foreign  Affairs and Trade (DFAT) cables CL38234, dated 15 December 1995, CX12970, CL463, dated 24 January 1997, CX21595, and CL821, dated 13 February 1998, CX28768;  Amnesty International, Sri Lanka:  Wavering commitment to human rights (August 1996), page 21.  The Applicant said that he came from Vavuniya.  It was his birthplace that was in Colombo.  He repeated that he was a Tamil.

   I put to the Applicant that there were between 350,000 and 500,000 Tamils living in Colombo (‘Colombo Red Alert’, Sri Lanka Monitor, May 1995, CX11039;  DFAT Country Information Report No 67/99, dated 5 March 1999, CX34175).  The Applicant said that they had not suspected everyone so far but thousands of people had been arrested and detained.  Those who were on the list of suspected persons would definitely be arrested.  If he returned there were already problems with his name.  If they saw him they would arrest him.  They would find out that he had studied in Vavuniya and that ‘such and such groups’ had taken him.  They would have been searching for him all this time and if they saw him they would not ask him any questions, they would  just shoot him.  I put to the Applicant that on his own evidence he had been arrested on a number of occasions but never charged with any offence.  The Applicant said that they arrested on suspicion and that interrogations were always adjourned.  That was why he had been released, and in addition money had been given.
   .....
   With regard to whether the Applicant could relocate to Colombo, the Applicant’s representative noted that I had put to the Applicant that there were up to half a million Tamils in Colombo and that he was not in the suspect group.  The Applicant’s representative submitted that it was common for people to be detained without being charged in Sri Lanka and that the fact that someone had not been charged did not mean that they would not be detained and mistreated again in future.  The Tribunal had suggested that the Applicant was not in the suspect group but he had been suspected in the past as a Tamil from Vavuniya and ‘quite a young fellow’.

   I put to the Applicant’s representative that the Applicant was over the age of 35 and had been born in Colombo.  I invited him to refer me to any information he was relying on to establish that the Applicant would be at risk in Colombo.  The Applicant’s representative said that he would do his best.”

5. The RRT then made findings as to the conditions existing in Sri Lanka since May 1997 so far as they were relevant to the proceedings before the RRT.  The Tribunal member found (at p 21 - p 22) :

   “With regard to the situation in Colombo, the Australian Department of Foreign Affairs and Trade reported in February 1998 that:

   ‘Since October 1997, the LTTE has launched an attack in the south every month, including two in Colombo, one in Kandy and one in Galle.  The frequency of LTTE attacks has led to a considerable tightening of security in Colombo.  In the last month an additional reason for tighter security was the 4 February celebrations for the 50th anniversary of independence.  The tighter security situation is felt especially by members of the Tamil community.  As security tightens, more people are being arrested, and the impact of the security measures are [sic] being felt by more Tamil people,’  (DFAT cable CL821, dated 13 February 1998, CX28768).

   The security measures take two forms.  First, when an attack is thought to be imminent, or immediately after one has taken place, the security forces conduct mass arrests of Tamils in operations known as round-ups or ‘cordon and search’ operations.  By way of example, following the explosion of the bomb in central Colombo on 15 October 1997 the security forces conducted a massive cordon and search operation in the early morning of 25 October 1997, code-named ‘Tiger Flush’.  Almost one thousand people were detained until their bona fides were established (DFAT cable CL783, dated 4 December 1997, CX27339).  Those at particular risk of being detained in round-ups or cordon and search operations are young Tamil men and women recently arrived from the North or the East (see DFAT cables CL38234, dated 15 December 1995, CX12970;  CL463, dated 24 January 1997, CX21595;  and CL821, dated 13 February 1998, CX28768;  Amnesty International, Sri Lanka:  Wavering commitment to human rights, August 1996, page 21).

   Secondly, there are checkpoints throughout Colombo at which everyone is required to produce evidence of their identity.  The Danish Immigration Service, in its Report on the fact-finding mission to Sri Lanka, 21 February to 7 March 1997 (Copenhagen, April 1997), states that at a checkpoint everyone stopped will be asked to show his or her identity card.  Those who lack identity cards or other proof of identity and who have no relatives in Colombo or who speak only Tamil are at particular risk of being detained at checkpoints.  Tamils not originating from Colombo will be questioned about the purpose of their stay in Colombo and whether they are registered with the local police.  As with the round-ups, young Tamil men and women form a particularly vulnerable group, especially those who have just come from the North (pages 13, 19 - 20).”

6. The Tribunal considered the question of whether the applicant had a well-founded fear of being persecuted for a convention reason against these findings of fact.

7. The RRT firstly considered whether the evidence of personal persecution as reflected in the various incidents recounted by the application satisfied the criteria.  Those incidents related to the conduct and treatment of the applicant in Sri Lanka generally and in the north and east areas in particular, and also in India.  In rejecting that evidence the RRT excluded material on which a well-founded fear of persecution could be based, particularly the circumstances of previous maltreatment at the hands of the authorities in Sri Lanka.  Whether or not the RRT believes the applicant or prefers one piece of evidence to another, is a matter entirely for the RRT to decide:  Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574 - 576.

8. That left the RRT to consider the position of the applicant in terms of the conditions which applied generally in Sri Lanka and particularly in Colombo and the north and eastern regions of the country.  Having made findings as to those conditions, the RRT identified groups which were at particular or greater risk than others, eg young male Tamils recently arrived in Colombo from the north or east.  The Tribunal then excluded the applicant from that group because he did not have the characteristics which marked out that group.

9. That left the applicant to be considered as one of the up to 500,000 Tamils in Colombo.  In this regard because he was born in Colombo and spoke Sinhala, on the material available to the RRT, he was at less risk to harassment than other Tamils in Colombo who did not have the benefit of these circumstances.  The Tribunal concluded that there was nothing in the evidence which would ground a well-founded fear of persecution on the part of the applicant based on a convention reason if he was returned to Colombo because there was nothing to differentiate his position from the position of the majority of Tamil residents in Colombo.

10. A similarity between this case and Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247 was sought to be drawn by the applicant. However as their Honours Justices Wilcox and Madgwick said at paragraph 9 :

    “We should emphasise that our conclusions depend on the circumstances of this case.  In many other cases the sole substantial basis for judging whether a person falls within the convention criteria for a “refugee” will be the information as to his/her supposed history and background furnished by an applicant.  Upon legally proper rejection of the credibility of an applicant in such a case, there will be no basis for requiring that the RRT do more than forthwith reject the claim for refugee status.”

11. The RRT, when it rejected the applicant’s evidence of his treatment in Vavuniya, denied to him any particular circumstances which would be likely to expose him to persecution at the hands of the authorities or militant Tamil groups such as the Tamil Eelam Liberation Organisation (“TELO”) or the People’s Liberation Organisation of Tamil Eelam (“PLOTE”).  This was because he was not a member of, or associated with, the LTTE or the EPRLF.  This left the applicant as a Tamil, in a predominantly Tamil area, with no connections with any particular Tamil militant group and therefore a person unlikely to be of interest to the authorities or to be involved in cross-factional violence between opposing Tamil militant groups.

12. In my opinion the RRT fully explored all relevant material as it applied to the applicant across a range of circumstances operating in Sri Lanka generally and Colombo and the north and east of the country in particular. Further, the RRT considered the position of the applicant in terms of the special circumstances he claimed, the circumstances of particular sectors of the Tamil community in Sri Lanka, and the circumstances of that community in general. In each circumstance the RRT asked the correct question as to whether in the circumstances under consideration there was evidence to support on the part of the applicant a well-founded fear of persecution for a convention reason. In so doing, it posed for itself and answered the correct question which arose under s 36(2) of the Act. In my view it was open to the RRT to conclude on the evidence that there was no basis for the applicant to hold a well-founded fear of persecution for a convention reason, if he returned to Sri Lanka.

13. Ground 1 of the amended application is not made out under either particular (a) or (b). 

14. The Tribunal considered all relevant evidence and was entitled to rely upon the evidence which it did.  It revealed in its reasons its process of reasoning and how it arrived at the conclusion which it did.  The RRT did not fail to consider any relevant circumstance available on the evidence which might support the applicant’s claim to a well-founded fear of persecution.  Grounds 2 and 3 of the amended application are therefore not made out.

15. The application is dismissed. 

16. The applicant is ordered to pay the respondent’s costs of and incidental to the application including reserved costs, if any, to be taxed if not agreed.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper.

Associate:

Dated:             27 August 1999

Solicitor for the Applicant:	McDonnells, Solicitors
Counsel for the Respondent:	Ms McNaughton
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	3 August 1999
Date of Judgment:	27 August 1999