Kumaralingam, Jacinthadevi v Minister for Immigration & Multicultural Affairs [1998] FCA 1624

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 674 of 1998

BETWEEN: JACINTHADEVI KUMARALINGAM

Applicant

AND: MINISTER FOR IMMIGATION & MULTICULTURAL AFFAIRS

Respondent

JUDGE: HELY J

DATE: 17 DECEMBER 1998

PLACE: SYDNEY

THE COURT ORDERS THAT: 1. The decision of the Refugee Review Tribunal given on 12 June 1998 be set aside. 2. The matter be remitted to the Tribunal for determination according to law. 3. The respondent should 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 674 of 1998

BETWEEN: JACINTHADEVI KUMARALINGAM

Applicant

AND: Minister for Immigration & Multicultural Affairs

Respondent

JUDGE: HELY J

DATE: 17 DECEMBER 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT HELY J: The applicant is a citizen of Sri Lanka. She arrived in Australia on 1 September 1997 without a passport or a visa. She was refused immigration clearance and taken to the Villawood Detention Centre. On 5 September 1997 application was made for a protection visa. The subsequent history of that application is summarised in the reasons for decision of Refugee Review Tribunal ("RRT") given on 12 June 1998. RRT affirmed the decision not to grant a protection visa to the applicant. The applicant was born on 27 May 1971. Her family originally came from the Jaffna Peninsula. RRT accepted that as a schoolgirl she had some involvement with the Liberation Tigers of Tamil Eelam ("LTTE"), including playing the bass drum in her school band for LTTE funerals, helping to collect money and food, and treating the wounded. The applicant said that her immediate family members were not involved with LTTE, but some more distant relatives were so involved. The only detail given relates to a cousin, Millar. He was a black tiger suicide bomber, who was killed in approximately June 1987 in an attack on a Sri Lankan army camp, just before the Indian Peace Keeping Force ("IPKF") came to Jaffna in about August 1987. The applicant gave details of being arrested and mistreated on a number of occasions in 1988 and 1989 by members of the IPKF. RRT accepted her claims in that regard. But as IPKF left Sri Lanka in early 1990, and as no political party in Sri Lanka advocates the reintroduction of Indian troops, RRT concluded that there is no real chance of an IPKF return, and if only for that reason, no real chance of further mistreatment of the applicant at the hands of the IPKF. Between 1985 and 1995 the area in which the applicant lived was under the control of LTTE. During that period the applicant made no claims of arrest or of detention. However, in around July or August 1995, the Sri Lankan army recaptured Jaffna town, and extended its control over the peninsula. On 31 April 1996 the Sri Lankan army captured Vadamarachichi, Jaffna, where the applicant's family then lived. Vadamarachichi is the birthplace of the LTTE leader, Prabha Haran. RRT found it plausible that the applicant was detained for questioning and was mistreated on at least one occasion, and possibly twice, by the Sri Lankan army, which was seeking LTTE terrorists opposed to the government following the recapture of Jaffna. RRT was not satisfied, however, that the claimed rape took place. Earlier in its reasons, RRT summarised the applicant's claims as follows: "The applicant also claimed that following the Sri Lankan armed forces recapture of Jaffna town in 1995 and the subsequent extension of its control over the peninsula she was detained again. After the capture, the army had been going from house to house seeking information about the occupants' knowledge of and links with the LTTE. As she lived in the Vadamarachichi area, birthplace of the LTTE leader Prabhakaran, the army had a particular interest in LTTE activities there. She has claimed that in April 1996 she was taken to a room where she was beaten, and then locked in a dark cell where she was cut with blades. Other women with her were raped, and when she saw this she became unconscious. After her family paid a bribe she was released having spent three days in detention. ... Another detention, in mid May 1996 was also claimed. The applicant stated before the present Tribunal that on this occasion, because her area had been put under LTTE control, she had been arrested, beaten, put in a room and raped. I put to the applicant that she had not previously claimed that she had been raped, and she answered that she had been reluctant to do so because the earlier "case officer" was male." At page 9 of its reasons for decision, RRT said: "… I cannot find that this detention, or acts of mistreatment in the course of questioning in detention in relation to terrorist activities, constitutes persecution." It is contended that this finding involves legal error, and it will be necessary to return to the details of the applicant's contentions in this respect later in these reasons. The applicant claimed that thereafter she left Vadamarachichi to live with her sister in Puthukuddiyerupu. She was married whilst living there in November 1996 to Sangaraghandylingam Kumaralingam. They stayed there until August 1997. This was a LTTE held area , and it had come under attack by the Sri Lankan armed forces. In August 1997 the applicant and her husband decided to move to Mallavi to escape the fighting. This district, too, was controlled by the LTTE and they again came to be under army attack. There was a great deal of shelling, and the applicant and her husband took shelter in the bush when they were separated. When the friends she was with decided to go to India she had no choice but to go with them as she had no relatives in Mallavi. The applicant arrived in India on about 15 August 1997. At page 10 of its decision RRT said: "The applicant, alone or together with her husband, was from time to time forced to flee as the government forces expanded the area they controlled. It has been established that no matter how serious, the hardship and dangers to people caught up in civil disturbances, do not, without more, amount to persecution: Periannan Murugasu v MIEA (unreported, Federal Court of Australia, Wilcox J, 28 July 1987 at 12-14). I do not regard the difficulties associated with avoiding the conflict as grounding a claim to refugee status." As earlier indicated, the applicant arrived in Australia on 1 September 1997. Her husband arrived in Australia illegally on 26 March 1998. He too made application for a protection visa, which application was refused. The refusal was confirmed by RRT and is the subject of an application for an order of review.