NOT FOR GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION BETWEEN : AND: CORAM: WILCOX J PLACE: SYDNEY DATE: 28 JULY 1987 No. NSW G.254 of 1987 PERITANNAN MURUGASU Applicant MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent MINUTES OF ORDER THE COURT ORDERS THAT: 1. The application for review be dismissed. 2. The applicant pay to the respondent his costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. Se ralentaethamearomes oes myer NOT FOR GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. NSW G.254 of 1987 were ww GENERAL DIVISION BETWEEN: PERIANNAN MURUGASU Applicant AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent CORAM: WILCOX J PLACE: " SYDNEY DATE: 28 JULY 1987 EXTEMPORE REASONS "FOR JUDGMENT This is an application for review of various decisions made on behalf of the respondent Minister for Immigration and Ethnic Affairs in relation to Mr Murugasu Periannan, a Sri Lankan national of Tamil extraction. There are two decisions under attack. The first of them is the decision which was made by Mr B W Sant, a senior immigration inspector of the entry section of the Department of Immigration and Ethnic Affairs at Sydney, when he refused my wenewe to issue to the applicant an entry permit on 28 April 1987. It appears that the applicant arrived on a flight from Singapore on that morning, holding a ticket to proceed from Sydney to Nadi, Fiji. The ticket was written by Continental Airlines. However, Continental Airlines indicated to immigration officers that it was not prepared to take the applicant to Fiji because the Fijian authorities had indicated that he would not be allowed entry. Mr Sant interviewed the applicant who stated that he was a seaman. He produced a Sri Lankan seaman's record book and a certificate of discharge which showed that he had been a seaman up until 9 June 1983. Mr Periannan informed Mr Sant that he was to sign on to a ship known as the "Lucky Star" at Nadi, and he produced a letter from a company called McLarens Shipping Limited which supported the statement. Mr Sant gave evidence before me. He indicated that he had some difficulty in communication with Mr Periannan, because of a language problem, but that he had the services of an interpreter over the telephone which assisted to some extent. Mr Sant said that he spoke to Mr Periannan for about half an hour and that Mr Periannan's primary concern was to continue his journey to Fiji in order to join the "Lucky Star". It was put to Mr Sant that Mr Periannan had told him that once he was in Fiji he proposed to obtain travel documents to Australia, but Mr Sant denied that this was ever said. He did agree that Mr Periannan, when told of the problem about going to Fiji, asked if he could stay in Australia. a rial fete bila Ree <a np sae ney ey een Mr Sant gave a statement under s.13 of the Administrative Decisions (Judicial Review) Act 1977 in connection with his decision to refuse an entry permit. In para.1i2 of that statement he says that he decided not to grant an entry permit or temporary entry permit and that he decided to refuse entry; those actions being taken with the knowledge that UTA would be endeavouring to take the applicant to a port at which he could join the "Lucky Star". The airline UTA had brought Mr Per1annan to Sydney. Mr Sant goes on in para.13 to say that the station manager at UTA was verbally advised of a decision to refuse entry and he undertook to examine on the following day the possibility of assisting the applicant to join the "Lucky Star". Mr Sant decided that the applicant should be held in custody, and he gave appropriate directions pursuant to s.36A(3) of the Migration Act 1958. Apparently Mr Sant thought that the applicant would need to be held for only a short time because he arranged for him to be taken to Maroubra police station, which is relatively close to Kingsford-Smith Airport, rather than to the Villawood Hostel. In the event, there was delay, and two days later Mr Periannan was moved to Villawood where, I understand, he remains. The challenge that was made to Mr Sant's decision is based upon the proposition that Mr Sant should have taken into account that Mr Periannan desired refugee status in Australia. It is said that this would have been relevant to his decision as to a temporary entry permit because it would have been reasonable for him to issue a temporary entry permit pending aoe Wow ee lee ie ot ee consideration of an application for refugee status. The problem about the submission is that Mr Sant's uncontradicted evidence is that at no stage did Mr Per1annan ask for refugee status. Nor, it seems, did he press any application to be allowed to remain in Australia. He certainly evinced some interest in this possibility if he could not go on to join the "Lucky Star"; but it seems to have been accepted by all concerned at the time of the decision that there was a prospect of going on to the "Lucky Star". I do not think that Mr Sant's decision can be criticized on the basis that he should have taken into account the possibility that there would be an application for refugee status and, on that basis, that he should have decided to issue a temporary entry permit. On the contrary, my view is that Mr Sant acted in accordance with the provisions of s.36A and, if I may say so, in accordance with the dictates of common sense. He took the practical course of endeavouring to arrange for Mr Periannan to be taken to his ship and, in the meantime, directed that he be held in custody for a short time. I do not see any basis for the attack on that decision. The second decision which 1s under attack is a decision by the delegate of the Minister, Mr Dennis Richardson, that the applicant does not have the status of refugee within the meaning of the Geneva and New York Conventions. This is a decision which apparently followed a decision to like effect by the interdepartmental committee known as the Determination of Refugee Status Secretariat. As ao pepriee o Mop een cay soywcas we pee gee oe var te a I understand the scheme of the Migration Act, there is no provision within that legislation for determination of refugee status, and it seems extremely doubtful whether a decision to grant or to refuse refugee status is a decision under an enactment. The importance of a determination that a person is a refugee is that this is a major aid to that person in making out a case for a grant to him or her of an entry permit under s.6A(1)(e) of the Act. That paragraph empowers the granting of an entry permit to a person in relation to whom there are strong compassionate or humanitarian grounds for the grant of the permit. Of course, there may be cases where the DORS Committee, as it is generally called, does not recognize the applicant's status as a refugee but, nonetheless, the Minister or his delegate, for reasons which seem good to one of them, decide to grant an entry permit. There may be other cases, although I suppose that they will be much more rare, where the DORS Committee does recognize refugee status, but, nonetheless, the application for an entry permit is refused. However this may be, the position in the present case is that on 4 June 1987 the solicitors for the applicant, who have acted for him throughout the whole episode, wrote to the Minister a letter which sought, amongst other things, "a statement of findings and reasons for the decision of the Determination of Refugee Status Committee contained in a letter dated 2 June 1987 refusing our client refugee status in Australia". Mr R B Penkethman, a delegate of the Minister who had apparently succeeded Mr Richardson in that position, obliged by issuing a statement of reasons on 12 June 1987. - oe re eg ge This statement refers to decisions made by Mr Richardson, but obviously in the context of the DORS Committee's consideration. However, it is important to observe that the statement does not purport to be a statement of reasons for refusing an entry permit or for the making of a deportation order. No doubt one reason for this is that the request only related to the decision to refuse refugee status. The other reason is that there has been no formal refusal of an entry permit and there has been no deportation order. I gather that the respondent takes the view that, as the applicant has at all material times been held in custody pursuant to directions under 36A of the Act, he has not yet "entered Australia", within the meaning of that Act; and consequently no deportation order is required for his removal. Although a request was made by the solicitors for the grant of an entry permit under s.6(2) of the Migration Act, there has been no response, one way or the other, to that request. Consequently, the only decision under present challenge relates to the denial of refugee status. I am not concerned with any broader decision. Still less am I concerned with any inference that might be drawn as to matters which might have been taken into account in relation to a broader decision but which were not relevant to the decision about refugee status. These remarks are important because a major feature of the argument on behalf of the applicant has been to complain of the failure of Mr Richardson to take into account various matters said to be relevant in relation to Mr Periannan's ultimate fate. yer ve ee ste meow cow In the further and better particulars, which were filed on 24 July 1987, six matters are referred to as not having been taken into account. They include a policy issued by the Department, identified as No.1330. This policy seems to have been designed to achieve two purposes: first, to set out the proper demarcation of responsibilities between the : DORS Committee on the one hand and the Department on the other in processing claims for refugee status by Sri Lankan applicants; and, secondly, to indicate that applications for resident status from Sri Lankans are to be treated "sympathetically on a case by case basis". It is said that Mr Richardson should have taken into account this policy. But the policy is plainly directed to decisions made by Departmental officers, in that capacity, in regard to the granting of entry permits rather than to determination of any question of refugee status. Secondly, it is said that Mr Richardson failed to take into account various articles emanating from Amnesty International and sent to the secretary of the DORS Committee by the applicant's solicitors on 22 May 1987. It is true that the reasons given by Mr Penkethman do not refer to those articles, although 1t is obvious from the reasons that the relevant letter was received. Its contents are discussed. However, in para.7 of his affidavit Mr Warwick Young, Acting Director of DORS, says that the members of the Committee who discussed the application had, within their knowledge and available to them, "material circulated to the Committee by ww whee oroee " Wee wee Amnesty International and various publications dealing generally with concepts of refugee and persecution within the terms of the United Nations Convention relating to the status of refugees". Whether or not the particular articles were read, I think it 1s clear from Mr Young's affidavit that the members of the Committee who considered the application were aware of the situation in Sri Lanka. It should be emphasized that there is nothing in the relevant articles which deals directly either with the applicant or with members of his family and there is nothing in those articles which clearly demonstrates a pattern of "persecution", to use the word included in the definition of "refugee" under the international Convention, as distinct from a pattern of communal violence in which incidents have occurred in which many Tamils have been killed or injured. I do not wish to be thought to underrate the significance of the picture painted in the Amnesty International articles. I merely make the point that there is no reason to believe that this picture was unappreciated by the members of the DORS Committee. The other matters which I referred to in connection with this first ground need not, I think, be discussed in any detail. One of them involves a failure to make further inquiries, and I will return to that. Another is the suggestion that the Committee erred in failing to take into account that an undertaking that had been given to the applicant by the Departmental officer who interviewed him on his first arrival had been breached. There is no evidence of — <5 wean e yet yee eee See en weer oe any breach of that undertaking. It is also said that the Committee failed to take into account that the United Nations High Commissioner for Refugees' representative held the view that the applicant should be considered eligible under present policy relating to Sri Lankans. To put this matter in its context, I observe that, at the last of the three meetings at which Mr Periannan's case was considered by the Committee, and after each of the members of the Committee, that is the representatives of the four constituent departments, had expressed the view that the application for grant of refugee status should be refused, the observer representing the United Nations High Commissioner for Refugees said that he had nothing to add to the previous assessments but that his Commissioner would hope that the applicant would be considered eligible under the present policy relating to Sri Lankans. TI can well understand this hope but it had nothing to do with the decision as to eligibility. It may have something to do with any subsequent decision as to the course to be taken in relation to the applicant's application for an entry permit and as to any action to remove him from Australia, but that is a matter for the Minister to consider. Finally, it is said that the Committee erred by failing to take into account that the applicant had entered Australia, within the meaning of the Act, because certain legal procedures had not been observed. This ground was not pressed. ' ware " ie i cer ie ilar] = eee ee te Lote 10. The second main ground of attack is a complaint of procedural unfairness in connection with the consideration of the application by the DORS Committee; and, I assume, the argument runs by extension to the consideration by Mr Richardson. I do not propose to set out in any detail the course of proceedings before the Committee. JI think that this is unnecessary and, from one point of view, undesirable. It 1s enough to say that on his first arrival in Australia the applicant was interviewed by a Departmental officer at length. He gave her a considerable amount of information about his life history, his family and his reasons for not wishing to return to Sri Lanka. The matter was submitted to the DORS Committee which felt that, on the basis of the applicant's statements, the matter was a borderline case. It was then decided to have further inquiries made in Sri Lanka. For that purpose, the Australian High Commission in Colombo was asked to ascertain various facts. It seems to me that the matters about which the Australian High Commission was asked to make inquiries were the obvious matters to be further considered in connection with the application. They were matters about which there was likely to be little difficulty in ascertaining the position and they were matters of importance. Information was obtained from the Australian High Commission. The Australian High Commission indicated the sources of its responses. The identity of those sources has - 2ereepere SR Sita tee er Tr re meng nee ee ep me ee a we ll. not in all cases been revealed to the applicant; although at an earlier hearing, and on my suggestion, the documents were shown to counsel for the applicant. I think it is enough to say that the sources appear to be reliable and I can see no ground whatever for criticizing the adequacy or skillfulness of the 1nquiries carried out by the Australian High Commission in Colombo. The DORS Committee considered this information. It plainly felt that the new information put a somewhat different complexion upon the facts, as they had been given by the applicant. It is obvious, reading its minutes, that the Committee was minded to take the view that the application for grant of refugee status should be denied. But it did not make a final decision. On the contrary, the secretary of the Committee wrote to the solicitors for the applicant a letter which accurately summarized the information obtained from Colombo and invited a response. The solicitors did respond and they gave explanations in regard to a number of matters. They did not suggest any further inguiries ought to be made. The DORS Committee considered the solicitors' letter and came to the conclusion that the application should be refused. I see no warrant for criticizing the proceedings of the Committee on the ground of procedural unfairness. On the contrary, I would regard the course which was taken as being eminently fair, firstly, in having independent inquiries made by competent people upon the salient aspects of the applicant's claims and, secondly, by giving to the applicant, through his solicitors, the opportunity of responding to the information so obtained. . is le Re ee os 12. Considerable attention has been paid in the argument before me to the question whether there was really any inconsistency between aspects of the information obtained in Colombo by the Australian High Commission and the statements made at one or more times by the applicant. Subject only to the matter of reasonableness, to which I will come in a moment, these were entirely matters for the DORS Committee to determine. Counsel has put everything which could be said, in my Opinion, in regard to the views expressed by the DORS Committee. But I cannot see that there is any basis for the view that the Committee was unfair in the way in which it handled the matter. Nor do I think that the ultimate conclusion of the Committee was unreasonable, in the sense in which that word is used in s.5(2)(g) of the Administrative Decisions (Judicial Review) Act. The critical question for the Committee to determine was not whether there had been incidents of violence in Colombo affecting members of the Tamil community. Regrettably there was no question about that. Rather the question was whether the applicant fell within the definition of "refugee" in the relevant international conventions. That definition requires determination of the issue whether the applicant was outside Sri Lanka, and unable or unwilling to return, because of a "well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular association, group or political opinion". Sm noe ar oe te ope Geet ee een ee , . 7 Tgp ee gerer ran wre ecw 13. The claim, of course, is that Mr Periannan had a well-founded fear of being persecuted because he was a member of the Tamil community. It is important to note that the definition requires consideration not only of the subjective question whether the particular applicant has a fear, but also of theobjective question whether that fear is well-founded. Moreover, the fear must be one of being "persecuted", for a particular reason. The word "persecuted" suggests a course of systematic conduct aimed at an individual or at a group of people. It is not enough that there be fear of being involved in incidental violence as a result of civil or communal disturbances. I agree with counsel for the applicant that it is not essential to the notion of persecution that the perscution be directed against the applicant as an individual. In a case where a community is being systematically harassed to such a degree that the word persecution is apt, then I see no reason why an individual member of that community may not have a well-founded fear of being persecuted. Questions of degree are involved, both as to the extent of the harassment which exists in a particular case and as to the continuity of that harassment, so as to answer the question whether it amounts to persecution. Conclusions of fact have to be made. I do not wish to be thought to minimize the problem in Sri Lanka, as it appears from the evidence and from one's general knowledge of the position, nor to minimize what must be the devastating effects upon individuals who find themselves caught up in tha violence. But whether or not the harassment and violence which has undoubtedly occurred can vane mt toe petite Woe oe ween pe re pee 14. properly be regarded as persecution of the Tamil community so as to create a well-founded fear of persecution in individual members is something which must be determined upon the basis of the whole of the information available. No information has been put before the Court to enable me to say that a negative answer to that question is an answer so unreasonable that no reasonable person could have reached it. The members of the DORS Committee ~- and I interpolate that the Committee includes a representative of the Department of Foreign Affairs -- were well aware of the nature of the problem in Sri Lanka, that the violence particularly affected and, perhaps was particularly directed to, members of the Tamil community and that the applicant was himself a Tamil. It may be that different people would take different views as to whether what was going on amounted to persecution and whether Mr Periannan had a well-founded fear as to his position if he returned. It happens that all members of the Committee appear to have been of the one view. I certainly do not think that this 1s one of those rare cases in which the Court can say that the conclusion of fact of the decision-maker was bad in law for unreasonableness. Under those circumstances it seems to me that each of the grounds of attack upon the conclusion reached by Mr Richardson, in the light of the DORS Committee decision, must fail. The application for review must be dismissed. I dismiss the application and I order that the applicant pay the respondent's costs. wre oo sepa 15. I certify the fourteen (14) preceding pages to be a true copy of the Reasons for Judgment of his Honour Mr Justice Wilcox. Associate: Aewne fvicE Date: 3 August 1987 Counsel for the Applicant: Solicitors for the Applicant: Appearances for the Respondent: Solicitors for the Respondent: Date(s) of hearing: Mr G Scragg John Bettens & Co Mr S Daley, solicitor appeared on 14 July 1987 Mr DM Yates, counsel appeared on 28 July 1987 Australian Government Solicitor 14 and 28 July 1987 ee on "pF "ve prea . ens oe ee Leen