Mahesparam v Minister for Immigration & Multicultural Affairs [1999] FCA 459

FEDERAL COURT OF AUSTRALIA

Mahesparam v Minister for Immigration & Multicultural Affairs [1999] FCA 459 IMMIGRATION - review of decision of Refugee Review Tribunal - Sri Lankan human rights lawyer - Tribunal considered that conditions had improved - reliance upon out of date materials - failure adequately to deal with material questions of fact arising from more up to date information before Tribunal - alleged failure to determine facts at date of hearing

Migration Act 1958 (Cth) ss 430, 476(1)(a).

Jarrin v Minister for Immigration & Multicultural Affairs [1998] FCA 765, explained Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247, applied

MAHESPARAM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NG 889 OF 1998 MADGWICK J SYDNEY 15 APRIL 1999

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 889 OF 1998

BETWEEN: VIJAYA KUMAR MAHESPARAM

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: MADGWICK

DATE OF ORDER: 15 APRIL 1999

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The decision of the Refugee Review Tribunal of 3 August 1998 be set aside. 2. The matter be remitted to the Tribunal for determination according to law. 3. The respondent pay the applicant's costs.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 889 OF 1998

BETWEEN: VIJAYA KUMAR MAHESPARAM

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: MADGWICK

DATE: 15 APRIL 1999

PLACE: SYDNEY

REASONS FOR JUDGMENT HIS HONOUR: 1 This is an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") which affirmed an earlier decision of the respondent's delegate to refuse the applicant a protection visa. The applicant is a Sri Lankan national of Tamil ethnicity. He claims that he left Sri Lanka on 3 January 1995 because he feared for his safety. He went to Korea via Manila for approximately one week and then back to Manila where he remained until he came to Australia in March 1997. He had a brother in the Philippines but made no application for refugee status there because he believed that such an application would be doomed to failure, the Philippines Government, in his understanding, being very unsympathetic to Tamil asylum seekers from Sri Lanka. Soon after his arrival in Australia he lodged an application for a protection visa. The applicant's claims 2 The applicant was born in 1952 at Batticaloa, which is located in the predominantly Tamil Eastern Province of Sri Lanka. His family was well to do and had traditionally performed a leadership role, as local chieftains (Vaniyars), in that province. They were distinguished for the production of barristers, lawyers and judges as well as other professional people and for their philanthropy. 3 As a boy, the applicant perceived that certain Singhalese Government policies were designed to promote the dominant Singhalese Buddhist culture and, in his early teens, he was already involved with his father in resisting illegal encroachment on Tamil lands by people from other ethnic groups. Increasingly, anti-Tamil measures were enacted by the Government. By the time the applicant was 25 years of age he was an active member of the youth wing of the Tamil United Liberation Front ("TULF"), the "Young Tigers", and was acquainted with many prominent figures in various pro-Tamil organisations. The area where the family lived was a Tamil Tiger ("LTTE") stronghold and most of the applicant's associates, friends and relatives are active members, supporters or sympathisers of the LTTE. In the late 1970s and early 1980s he sustained a variety of indignities and assaults from Government officials and other Singhalese apparently having a racial basis. He and his family thereafter suffered a great many indignities and varieties of reasonably severe harm at the hands of Sri Lankan authorities and, while they were there Indian army personnel. 4 More germane to the present problem are the events claimed by the applicant from 1987, when he graduated from the Law College in Colombo. He was by this time married. His wife was employed by the State Pharmaceutical Corporation. She was the victim of workplace racial discrimination and ultimately her employment was terminated on spurious and racially motivated grounds. While serving as a legal "apprentice" the applicant instituted proceedings for racial discrimination against his wife's employer and the Attorney General in the Supreme Court. The case was ultimately dismissed, according to the applicant, by Singhalese judges for racially motivated reasons. Subsequently, the applicant assisted his wife to seek redress before a Labour Tribunal for unlawful termination of her employment. After an extensive inquiry that Tribunal ordered that she be reinstated. The litigation concerning his wife received wide publicity all of which, the applicant claims, was deeply embarrassing to the Government. The Attorney General caused an appeal to be made to the High Court, which was still unheard when the applicant left Sri Lanka and the outcome of which, if any, he does not know. 5 Thereafter, the applicant represented many clients in litigation challenging actions of government officials. In time, he became well known as a human rights advocate. He appeared, in particular, for aggrieved Tamils in cases concerning applications for writs of habeas corpus, bail applications, various matters seeking the vindication of fundamental rights and defending charges of bribery and terrorism. He had also represented Singhalese persons who claimed to have been illegally and adversely treated on account of their anti-government views, trade-union activities and so on. 6 To act in these circumstances apparently required no small degree of courage. In 1990 the Bar Association of Sri Lanka stated that: "The practice of the law itself was made the target of attack. Many of our members who accepted briefs to challenge the denial of fundamental rights found themselves at the receiving end of mortal threats. Some were removed from our midst with violence. Others had to seek safer havens abroad." 7 The Applicant claims that he was threatened several times and that a friend of his, a human rights activist and journalist, was killed. Amnesty International confirmed that some lawyers with an anti-government profile had been threatened with death and some, in fact, killed. 8 In 1990 or 1991 the applicant's Singhalese landlord falsely accused him of "criminal force" and a warrant of arrest was issued against him. He was released on bail and sought from the Court of Appeal a stay order which though granted was apparently ignored by a Singhalese Magistrate. According to the applicant the Tamil State Attorney recommended to the Attorney General that there was no merit in the charge and that the police should be instructed to withdraw the case. However, the Attorney General refused this recommendation. The applicant claims that these false charges were acted upon with racially motivated vindictiveness by Singhalese authorities. In 1991 the applicant secured a stay of any trial pending an apparently final hearing of some kind in the Court of Appeal. He fears that these proceedings may again be invoked against him if he is required to return. 9 In 1992 an action for ejectment was brought against the applicant by his landlord. The applicant complains that the then President of the Court of Appeal, Justice Silva, demonstrated biases against the applicant in relation to this matter on account of the latter's uncompromising pursuit of various alleged Governmental illegalities. This bias, it is claimed, led to the upholding of the landlord's complaint and to an award of substantial damages against the applicant. (Soon after he left Sri Lanka the applicant's family was evicted from the premises in question upon a Court order signed by the former Justice Silva who, by this time, had been appointed Sri Lankan Attorney General.) 10 In 1994 a certain Mr Jayasekara commenced proceedings for divorce against his wife on the ground of her alleged adultery with Justice Silva (who was at this time, still the President of the Court of Appeal). As President of the Court of Appeal in Sri Lanka, Justice Silva was not only the most senior judge but also occupied a senior position with the Judicial Services Commission and the Judicial Disciplinary Committee. These bodies apparently appoint, promote, transfer and discipline judicial officers. The judge at first instance refused to accept Mr Jayasekara's claim due to an extremely technical fault in the documentation. The applicant was asked by various senior lawyers and members of the Bar Association Committee to appear for Mr Jayasekara. This he agreed to do and caused initiating appellate process to be issued. 11 What the applicant claimed was a campaign against him thereupon intensified. In the course of 1994 the Government had changed and in 1995, after the applicant left Sri Lanka, the President of the Court of Appeal became, as already noted, the Attorney General. The applicant's national identification card was stolen from him by prison authorities while visiting one of his clients. The applicant suggests that this caused him difficulties while moving within Sri Lanka and would cause him considerable difficulties if he were to return without it. More seriously, two weeks later, the applicant was abducted by secret police on his way home from his office at night. He was blindfolded and taken to an isolated building, beaten, tortured and left unconscious. He was threatened with death unless he withdrew the case against Justice Silva. 12 After these events the applicant capitulated and withdrew from various legal cases in which he was involved, claiming that he was too sick to appear. In fact, after the assault, he was receiving medical attention. However, Justice Silva (as he still was) saw to it that, despite applications for adjournment, brought on the basis that the applicant was ill, adverse orders were made against the applicant's clients. 13 Apparently others had mounted something of a political campaign against Mr Silva. The applicant hoped that he would stand down. However, the applicant believed that he needed to leave the country for his safety. He learned, before he left Sri Lanka, that an extensive investigation had been conducted by Police Intelligence, allegedly upon the orders of Justice Silva, in order to gather evidence which suggested that the applicant was involved