FEDERAL COURT OF AUSTRALIA Arumugam v Minister for Immigration & Multicultural Affairs [1999] FCA 251 MIGRATION – Refugee – mistreatment not sufficiently serious to constitute persecution – question of fact and degree – Refugee Review Tribunal arbiter on such questions. Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Prahastono v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260 SATHEESKUMAR ARUMUGAM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NG 1341 of 1998 LINDGREN J 4 MARCH 1999 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 1341 OF 1998 BETWEEN: SATHEESKUMAR ARUMUGAM Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: LINDGREN J DATE OF ORDER: 4 MARCH 1999 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs. 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 1341 OF 1998 BETWEEN: SATHEESKUMAR ARUMUGAM Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: LINDGREN J DATE: 4 MARCH 1999 PLACE: SYDNEY REASONS FOR JUDGMENT (ex tempore) 1 The applicant applies under s 476(1) of the Migration Act 1956 ("the Act") for review of a decision of the Refugee Review Tribunal ("RRT") dated 27 November 1998 affirming a decision of a delegate of the respondent ("the Minister") not to grant him a protection visa. Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant for it be a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (compendiously, "the Convention"). Article 1A(2) of the Convention provides that a refugee is any 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; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it." 2 The applicant's case is that he is outside the country of his nationality, Sri Lanka, and is unwilling to return to it because of a well-founded fear of being persecuted for reasons of race or imputed political opinion or membership of a particular social group. Procedural Background 3 The applicant arrived in Australia without documentation on 25 August 1998. On 2 September 1998 he lodged an application dated 1 September 1998 for a protection visa (visa sub-class 866). A delegate of the Minister refused the application on 30 September 1998. On 2 October 1998 the applicant applied to the RRT for review of that decision. The RRT conducted a hearing on 17 November 1998. As noted above, on 27 November 1998 the RRT affirmed the delegate's decision. The applicant filed his present application in this Court on 10 December 1998. The Decision of the RRT 4 The RRT commenced its reasons for decision by referring to the procedural background, the legislative framework and the law relating to the Convention definition of a "refugee". It then turned to consider the applicant's evidence. 5 Upon arrival in Australia on Tuesday 25 August 1998 at Sydney Airport, the applicant was interviewed by an immigration inspector. The applicant was assisted at the interview by a properly accredited Tamil interpreter from the Telephone Information Service ("TIS"). According to the applicant, the interpreter came from India, not from Sri Lanka. The applicant was to make something of this later. 6 The applicant claimed to the immigration inspector that he was a Sri Lankan Tamil, that his parents lived in Vavuniya, that he had no friends or relatives in Australia and that he had not been in Australia previously. He said that he was not a member of any political or other organisation in Sri Lanka but that he had friends in the Tamil Eelam Liberation Organisation ("TELO"), a pro-government Tamil militant group which worked with the Sri Lankan Army. He claimed that his friendship with members of the TELO had aroused the suspicion of the rival People's Liberation Organisation of Tamil Eelam ("PLOTE") which is also said to work with the Army. He claimed that while both the TELO and the PLOTE (which he referred to as "PULAT") both got on well with the Sri Lankan Army, they were enemies of each other. He said that Vavuniya was in PLOTE territory and that the PLOTE did not like him because of his friendship with members of the TELO. He said that he left Sri Lanka to escape being harassed by the PLOTE. In addition he claimed that the Army harassed him by not letting him go to Colombo. 7 The applicant claimed that two years earlier (apparently in 1996) he was detained by the Army for three days for questioning. He said that during this detention he was kicked on the buttocks and slapped in the face because he was suspected of being a member of the Liberation Tigers of Tamil Eelam ("LTTE"). The applicant also said that the police had detained him a few times in the proceeding twelve months (that is the twelve months down to the time of the interview at Sydney Airport) on suspicion that he belonged to the LTTE. He said that senior police officers were "nice" to him but that their subordinates would "on occasions slap him in the face". He said that he had not been persecuted, gaoled or tortured by the authorities and that he was coming to Australia to escape "all these problems". He claimed that he had come to Australia also because the PLOTE had killed three people from the TELO and he was afraid that the PLOTE might kill him also for having friends in the TELO. He said that he was afraid that the Army and Police might beat him up, but not that they would kill him. However, he asserted that the PLOTE wanted to kill him. He said that both of his brothers were on occasion "beaten up" by police "for [the] same reason as he was" but that they lived well, tended to the land and sold produce at the markets. He said that his whole family was well off and did not need help from him. He said that his father had sold one of the family's "ancestral" properties to fund the applicant's flight from Sri Lanka. 8 The applicant said that one, "Kannan", who had facilitated his departure from Sri Lanka had told him to lie to the Immigration Authorities in Sydney and to tell them that he had been tortured by the Sri Lankan forces, but that he had in fact spoken the truth. 9 After the interview at Sydney Airport, the applicant was taken to the Immigration Detention Centre at Villawood. 10 Some time between Tuesday 25 August and Wednesday 2 September, the applicant had the assistance of a migration consultant, Thamilarasan Selliah, LLB. He wrote to the Department of Immigration and Multicultural Affairs on 2 September advising that completed application forms for a Protection Visa would be lodged within three days. 11 These further application forms were sent to the Department on 8 September 1998. In a statement in support, also dated 8 September, the applicant made additional claims. (This statement of 2Ľ pages accompanied the application for review to this Court.) First, the applicant said that in August 1993 he was arrested by the Sri Lankan Army in Vavuniya and taken to a nearby camp. He said that he was kicked and accused of being a member of the LTTE; that after two days an officer told his subordinates not to hit the applicant after which they ceased doing so when the officer was around; and that after four days, his father secured his release. 12 Second, the applicant said that in 1995, while on his way to Colombo to meet his elder brother and sister, he was arrested by the Wattala police who detained him for three days and kicked him and hit him while in detention. He said that he was "treated worse than an animal" while in detention. After his release he went back to Vavuniya and assisted his father in farming. 13 Third, the applicant claimed that in the latter part of 1996 he and his elder brother were arrested after the LTTE had attacked an Army vehicle near his family's house, killing two soldiers. He said that the Army "retaliated by shooting everywhere blindly". He said that the Army started searching every house just two hours after the incident. More than twenty people were detained including the applicant and his brother. The applicant claimed that in detention he was hit and not given food for two days. He was accused of having planted the bomb. He was released on the third day, but his brother was taken to another camp where he was tortured and released after a month. 14 Fourth, the applicant claimed that he was again arrested in 1997 after a further attack by the LTTE. He claimed that on this occasion the police released him after two days of interrogation and that he was required to report to the police station every Monday for three months. 15 Fifth, the applicant claimed that in 1998 while on the way to Colombo to obtain some medicine for his mother, he was arrested by the Army in Madawachchi. The Army accused him of going to Colombo to plant a bomb but he was released after two days with a warning not to go to Colombo and to go back to Vavuniya. 16 In addition to these five additional claims, the applicant also repeated in the statement his claim that one of his school friends was a member of the TELO. He said that in 1998 there was fighting between the PLOTE and the TELO in which people were killed. His friend was involved in the fighting and killed two members of the PLOTE. The PLOTE took revenge by killing his friend and some others who had been with him. The applicant claimed that after this, members of the PLOTE came to his house looking for him but he was not home. His father asked why they were looking for him and they said "he too an enemy". They told his father to bring him to their camp. When the applicant returned home, his father sent him to stay at his aunt's house. Three days later, his mother came to his aunt's house and said that the Sri Lankan Army and members of the PLOTE had come to the family home looking for the applicant and had hit his father and sister and broken his father's leg. His father was hospitalised. (The applicant later provided a letter from a doctor at the Vavuniya Base Hospital which said that a Mr Subramaniyam Pillai Arumugam, aged 65, was admitted to hospital on 13 April 1998 for treatment of a fracture of the "right calcaneus".) The applicant's mother told him to go away. She told him to sell a piece of land and to get money from his brother to go overseas. He said that she made arrangements for that purpose in Colombo through one of his (the applicant's) friends. 17 On 16 August 1998, the applicant went to Colombo in a truck. In Colombo, "Kannan" told him that he could depart on 18 August. The applicant paid Kannan Rs 600,000. On 18 August, Kannan took the applicant to Hong Kong "using a different passport". The applicant stayed in Hong Kong in a room where he was introduced to "Kalir" who took him to Hong Kong Airport on 24 August. There, Kabir took the applicant's passport and ticket and gave him another ticket. On that ticket he went to Malaysia and from there to Australia. 18 On 17 September 1998 the applicant was interviewed by a Departmental officer in connection with his application. The applicant repeated the claims that he had made in the written statement accompanying his application for a protection visa. 19 At the hearing before the RRT, the applicant was questioned about aspects of his evidence which were said to be inconsistent. He was asked why he had not made certain claims found in his written application earlier to the Departmental officer during his interview at the airport. The RRT's questions and the applicant's responses are recorded over several pages of the RRT's reasons for decision. The RRT then referred to independent evidence of the situation in Sri Lanka before turning to its findings and its reasons for decision. 20 The RRT did not accept a number of the applicant's claims. In particular, it did not accept that the applicant left Sri Lanka because the PLOTE and the Sri Lankan Army came looking for him because he was suspected of being a member of either the TELO or the LTTE. The RRT did not accept that the applicant had been in hiding at his aunt's house two or three miles from his own home from April to August 1998, that is, just before he left Sri Lanka. The RRT considered it implausible that, had the Army or the PLOTE been looking for him, they would not have been able to find him at his aunt's house. 21 The RRT did not consider that the applicant would have omitted during the airport interview to mention that he had been in hiding because the PLOTE were looking for him if that was in fact the case. It concluded that the applicant's claims regarding the PLOTE having come to his house in April 1998 in search of him, their having returned the next day with the Sri Lankan Army, and his having spent the months between April and August 1998 in hiding were a fabrication intended to provide support for his application for a protection visa. This was an important conclusion because it related to the period just before the applicant left Sri Lanka. 22 The RRT noted that the applicant had provided a letter which his mother had sent to him while he was in Australia and which said that the Army and the PLOTE were searching for him because he was suspected of being a member of the LTTE. It was suggested by the applicant that the PLOTE or the Army might have thought that he was an LTTE agent who had instigated the conflict between the PLOTE and the TELO referred to earlier. However, the RRT did not accept this evidence and considered that it had been prepared for the purpose of providing support for the applicant's claim. It considered that the evidence was a construction of the applicant based on similar incidents which he had read about in newspapers (at the hearing before the RRT the applicant agreed that he had read about such incidents in newspapers). 23 The RRT accepted that the applicant may have had friends in the TELO and that he may have become scared as a result of the fighting between the TELO and the PLOTE and that he may even have feared that the PLOTE might kill him because he had friends in the TELO. However, it did not accept that the applicant had ever been targeted by the PLOTE, or that he was suspected by the PLOTE of being an LTTE agent or of having instigated the confrontation between the PLOTE and the TELO in Vavuniya. The RRT referred to information available to it which showed that while the PLOTE had been responsible for the deaths of a number of TELO members, there was no suggestion that anyone had been killed simply for being a friend of a member of that group. It therefore did not accept that the applicant's fear that the PLOTE might kill him was "well-founded". 24 In relation to the applicant's claims to have been detained, the RRT accepted that the applicant may have been detained in Colombo in August 1995 when he went there to meet his older brother and sister. However, on the applicant's own account, once the authorities in Colombo had been able to confirm his identity, they released him. The RRT also accepted that the applicant may have been detained in Madawachchi in January 1998. However, it noted that this appeared to have been a case of mistaken identity: the police were apparently looking for someone with the same name and once they confirmed that the applicant was not the person for whom they were looking, they released him. 25 The RRT did not accept that the applicant was detained in August 1993 and accused of being a member of the LTTE or that he was detained in the latter part of 1996 and accused of having planted a bomb in Vavuniya. It noted that the applicant had not mentioned either of these incidents at the airport interview and thought that his evidence in relation to them was inconsistent. 26 The RRT accepted that the applicant may have been arrested in June 1997 after the LTTE attack on Vavuniya and that on this occasion he was released after two days but required to report to the police station weekly for three months. However, it noted that the applicant did not claim that he was ever severely mistreated or tortured by the Sri Lankan authorities. At the airport interview he referred only to having been kicked in the buttocks and slapped in the face. The RRT considered that, while the applicant may have been detained on a number of occasions and possibly kicked or slapped, this conduct was not sufficiently serious to amount to "persecution" for the purposes of the Convention definition. It considered that there was nothing in the applicant's evidence (setting aside what it had rejected as fabrication) which would suggest that the applicant had ever been seriously suspected by the Sri Lankan authorities of supporting the LTTE; nor did it accept that there was a real chance that the applicant would suffer some serious punishment or penalty if he returned to Sri Lanka. 27 As noted earlier, the RRT affirmed the delegate's decision to refuse the applicant a protection visa. Reasoning 28 The applicant has appeared before me in person. The application for an order of review filed on 10 December 1998 shows signs of having being prepared without the benefit of any legal advice. No ground of review referred to in s 476 of the Act is identified in the application. All that is said under the provision for a statement of the "grounds of the application" is as follows: "1. I am a Sri Lankan of Tamil ethnicity and my name triggers as a Tamil so I will be suspected by the Sri Lankan government authorities as a LTTE. 2. In Patnasim v Minister for Immigration, Burchett [sic] reported on 03 Dec '93 that the discretion conferred by the Immigration Act must be exercised in the interest of Australia. Those interests [sic] are not to be understood in a narrow sense. They include Australia's good name." 29 As noted earlier, the applicant also attached a copy of his statement which had supported his application for a Protection Visa. 30 It would be possible to dismiss this application on the ground that the applicant has not pointed to any of the limited grounds of review permitted to this Court by s 476 of the Migration Act 1958 (Cth). However, having regard to the fact that the applicant does not have legal assistance, I have read the RRT's reasons for decision carefully and asked myself whether any of the permissible grounds of review appear to exist. In my opinion they do not. 31 The RRT did not accept many of the applicant's claims. It pointed to the late making of claims and to inconsistencies. The inconsistencies which it perceived were largely between the account which the applicant gave at the airport interview on 25 August 1998 and his statement apparently made on 8 September 1998 after he had had the assistance of a migration consultant. 32 The applicant complained in a written submission to this Court as he had done to the RRT that the interpreter at the airport was from Kerala in India, not from Sri Lanka, but the RRT dealt with this submission. It pointed out that the interpreter was an accredited Tamil interpreter located by the Telephone Information Service and that much of the statement made by the applicant at the airport interview as interpreted was later found to be correct in any event. 33 What is important in a case such as this is that it is not the function of the Court to operate as the tribunal of fact reviewing the evidence afresh with a view to determining whether the Court would have come to the same conclusion as the RRT. The Parliament has divided up the decision making process so that the RRT, not this Court, is given the function of assessing the applicant's allegations and the evidence. It is only if one of the very limited grounds set out in s 476 is made out that the Court is empowered to intervene. 34 In addition to the matter of the lateness of the making of some claims, inconsistencies and the matter of the interpreter at the airport, the RRT rejected as outright fabrications certain aspects of the applicant's account. Again, this was a matter for the RRT, not for me, unless the fact finding process gave rise to one of the errors identified in s 476. I do not see that it did so in this case. 35 The last matter to be mentioned is the question of severity of treatment. The applicant referred to the fact that certain subordinates during periods of detention kicked him in the buttocks and slapped him. In this respect the RRT said that this treatment, while not to be condoned, was not of the level of seriousness necessary in order to constitute the relevant element of persecution. The RRT referred to the statement by Mason CJ in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 388 that: " ... the Convention necessarily contemplates that there is a real chance that the applicant will suffer some serious punishment or penalty or some significant detriment or disadvantage if he returns." 36 The applicant's claim was that he had been "kicked [on the] backside and slapped [in the] face". In my opinion, mistreatment described in those terms may or may not have been sufficiently serious to constitute the relevant element of persecutory conduct. One need only consider two possibilities to appreciate that this is so. First, one can imagine a situation in which young Tamil males are being "herded" into or in detention and are being roughly handled by subordinate officers contrary to the directions of their superiors. While the conduct described would be deplorable and inexcusable, it would be open to the RRT to conclude that it was not sufficiently serious to found a fear of persecution. On the other hand, the slapping in the face might take place repeatedly over a lengthy period as part of an interrogation and the kicking in the buttocks might take place repeatedly while the applicant is lying on the ground and cannot get to his feet. Plainly, such mistreatment would be of a quite different order of seriousness. I have not seen the transcript of the hearing before the RRT and it is not the Court's role to embark upon its own investigation of the facts. 37 The present issue is one of fact and degree and so is precisely the kind of issue the determination of which is a matter for the RRT not for this Court: cf Prahastono v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260 (Hill J) at 271. While I have sympathy for the applicant, the conclusion reached by the RRT does not appear, on the material before me, to be one that was not open to it. 38 In the result, the Court orders that (1) The application be dismissed. (2) The applicant pay the respondent's costs. I certify that the preceding thirty eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate: Dated: 4 March 1999 The applicant appeared in person Counsel for the Respondent: Ms A F Backman Solicitor for the Respondent: The Australian Government Solicitor Date of Hearing: 9 February 1999 Date of Judgment: 4 March 1999