Devege v Minister for Immigration & Multicultural Affairs [1999] FCA 1376

FEDERAL COURT OF AUSTRALIA

Devege v Minister for Immigration & Multicultural Affairs [1999] FCA 1376 MIGRATION – application for review of a decision of the Refugee Review Tribunal – whether unreasonableness constitutes an error of law – whether the "real chance" test in Chan v The Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 was correctly applied by the Tribunal – the relationship between s420 and s476(1) of the Migration Act 1958 (Cth).

Migration Act 1958 (Cth) ss 36(2), 420, 476, 485

Migration Regulations 1994 Sch 2 Chan v The Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 cited Eshetu v Minister for Immigration & Multicultural Affairs (1997) 145 ALR 621 referred to Eshetu v Minister for Immigration & Multicultural Affairs; Re Minister for Immigration & Multicultural Affair; Ex parte Eshetu 62 ALR 577 followed RANJITH WIJESINGHE ILANDARI DEVEGE V MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 552 of 1999 MATHEWS J 7 OCTOBER 1999 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 552 OF 1999

BETWEEN: RANJITH WIJESINGHE ILANDARI DEVEGE

Applicant

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

JUDGE: MATHEWS

DATE OF ORDER: 7 OCTOBER 1999

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application is dismissed with 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 N 552 OF 1999

BETWEEN: RANJITH WIJESINGHE ILANDARI DEVEGE

Applicant

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

JUDGE: MATHEWS

DATE: 7 OCTOBER 1999

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant seeks judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") dated 7 May 1999 in which the Tribunal affirmed a decision of the respondent's delegate to refuse the applicant's application for a protection visa. Factual Background 2 The applicant was born on 12 January 1961 in the western province of Sri Lanka. He is a Sri Lankan national. He and his family are Sinhalese. After completing his schooling, he studied law at the University of Colombo and graduated with a Bachelor of Laws in April 1990. In November 1991, he was admitted as an Attorney at Law of the Supreme Court of Sri Lanka. 3 Towards the end of his legal studies, the applicant was introduced by friends to an organisation called the Lawyers for Human Rights and Development Centre (LHRD). He became involved in the centre's work, and in July 1990 began working for the centre on a full-time basis. 4 At that time – and indeed now – human rights violations were frequent occurrences in Sri Lanka. There has been open conflict between the government and the Liberation Tigers of Tamil Eelam (LTTE), an insurgence organisation which has been fighting for a separate state for the Tamil minority in Sri Lanka. This conflict has led to serious and continuing human rights abuses, including unexplained disappearances, extra-judicial killings, arbitrary arrests and detention, and the torture and mistreatment of detainees. 5 The applicant conducted a full range of human rights cases whilst working for the LHRD. This did not make him popular with some segments of Sri Lankan society. On one occasion he and a colleague were returning from a slum area when they realised that they were being followed. They reported this to their organisation which in turn reported it to the police. As a result of this, police protection was provided for the building occupied by the LHRD, but not for its employees after they left the building. 6 In January 1992, the applicant left the LHRD and commenced his own practice. His work consisted mainly of criminal and labour law cases. A great deal of it was referred to him by the LHRD and, from 1996, by a predominantly Tamil trade union. In addition, after the cease-fire between the LTTE and the government broke down in 1995, the applicant was asked to represent numerous Tamils who had been arrested on suspicion of belonging to that organisation. These cases were referred to him, the applicant said, because he was Sinhalese, because he had experience in human rights cases, and because he was willing to assist Tamils. He had no way of knowing whether his Tamil clients were in fact members of the LTTE. 7 The applicant's eventual departure for Australia, in September 1997, was triggered by five incidents. The first occurred in June 1996 when three unknown persons came to his home and threatened him. He was told that he should stop representing Tamils as they came from the LTTE. If he continued to do so, he was told his life would be in danger as he would also be treated as part of the LTTE. 8 The second incident took place the following month, in July 1996. Whilst the applicant was returning home one day he realised that a van was following him. When he reached his home five persons alighted from the van and took hold of him. His wife began to scream and they locked her in the house. They then dragged the applicant about 100 to 200 metres from his home where they assaulted him. They questioned him about a particular Tamil client and told him that he should not continue to represent Tamils who had been arrested on suspicion of belonging to the LTTE. They then let him go and he returned home. 9 The applicant told the Chairman of the LHRD about this incident and about the fact that his interrogators had been enquiring about this case. The Chairman told him that the LHRD had also received threats, and warned the applicant to be careful. The applicant did not complain to the police about the incident. He was afraid to do so, he said, because his assailants had demanded that he not report the matter to anyone, and in any event he suspected that his assailants were themselves police officers. 10 In September 1996, the applicant came to Australia for a conference on industrial law. On his return to Sri Lanka, he and his wife moved to a different town where he continued to work as a lawyer in sole practice and to appear in cases involving human rights violations. In a number of these cases he represented Tamil youths who had been arrested on suspicion of membership of the LTTE. Most solicitors, he said, were unwilling to do this sort of work. 11 The third incident took place in January 1997. Two Sinhalese persons came to the applicant's home one evening and asked him to come and assist a friend who had been arrested and was detained at a nearby police station. The applicant had no suspicions, and went with them in their van. However, they did not go to the police station. Not far from the applicant's home, the van stopped and three other people got in. The van kept going and eventually stopped a considerable distance from the applicant's home. The applicant was asked about a number of his Tamil clients. It was clear, he said, that these people knew many of the details of the cases in which he had been involved. They then "beat him up", as he put it, and left him alone on the road. He later found a taxi and went home. 12 The fourth incident took place in April 1997. The applicant was standing at a bus stop when a van stopped near him. Three persons got out and pulled him in. They gagged him, blindfolded him and tied his hands. They demanded the combination lock for his briefcase and then questioned him about its contents. They were particularly interested in a case involving a number of Tamils who had been arrested and detained, and asked him general questions about the LHRD. After some considerable distance the van stopped, the occupants removed the applicant's blindfold and pushed him out of the van, throwing his empty briefcase after him. He again returned home by taxi. 13 After these incidents, the applicant was apprehensive for his safety. He and his wife moved to her family home in Kegalle near Kandy. On the evening of 12 July 1997, five people came to their home. They forced the front door open. One of them held the applicant's wife whilst another two assaulted the applicant's father-in-law. They accused the applicant of aiding and abetting the Tamil Tigers. They then took him in a van to a house about half an hour's distance away. There the applicant was stripped and hung naked by his legs. He was interrogated as to whether he was helping the LTTE and why he was representing Tamils. He was later untied and told to lie down on a bench. Two other people entered the room. One of them pointed a rifle at the applicant's head and asked if he was willing to die. He told the applicant that he was a traitor who had betrayed his own race. Later the applicant's clothing was returned, he was taken in a jeep and thrown out into the dark with a warning that this was his last chance. The applicant stopped a passing lorry and was driven home where he arrived at about 5.30 am. 14 As a result of this incident the applicant sustained injuries which required medical treatment. He decided that it was unsafe for him to remain in one place, and started moving between the homes of various family members. He was unable to work during this period. 15 The applicant and his wife determined that it was unsafe for him to remain in Sri Lanka. He enrolled for an impending legal conference in Australia and on 18 September 1997 left Sri Lanka, using his own passport. He entered Australia the following day on a visitor's visa. On 23 October 1997, he applied for a protection visa. No interview was held and on 29 October 1997, the application was rejected by the respondent's delegate. 16 The applicant applied to the Tribunal for review of the delegate's decision. He obtained the services of a migration lawyer who presented a lengthy submission to the Tribunal, accompanied by a further statutory declaration of the applicant. In this declaration the applicant referred to the continuing problems in Sri Lanka and the likelihood that he would be arrested and mistreated by the authorities were he to return. He would not, he said, be prepared to stop representing Tamils and would want to continue his involvement in human rights work. He said that the people who abducted and mistreated him were members of the Sri Lankan security forces, and while they were not acting officially, their actions were condoned by the Sri Lankan Government. Accordingly, he was unable to seek official protection, and the danger to his well-being would continue upon his return. He said that since his departure from Sri Lanka his brother has been harassed and interrogated by the authorities in order to obtain information about him (the applicant). 17 The hearing before the Tribunal took place on 20 April 1999. The Tribunal received written material submitted by the applicant, including a number of references from Sri Lankan lawyers who confirmed the substance of the applicant's account of his experiences in that country. A considerable amount of country information was also before the Tribunal. The applicant gave evidence at the hearing, and although the transcript of his evidence was not before me, I am assured that it was generally in accordance with the material otherwise contained in his statutory declarations. In so far as there was further material of relevance, it was referred to in the Tribunal's decision. 18 At the close of the hearing the applicant and his representative were given an opportunity to provide further material or comments to the Tribunal by 3 May 1999. This offer was taken up, and on 3 May 1999 a further submission was lodged with the Tribunal accompanied by another statutory declaration. In it the applicant dealt with a suggestion that had been raised at the hearing, namely that he might be able to practise his profession in safety, without persecution, were he to relocate to Colombo. (It had been noted that the various incidents precipitating his departure had all taken place outside the metropolitan area.) The applicant, in this statutory declaration, said that human rights violations are, if anything, more prevalent in Colombo. It would not be possible for him to live and practise with safety in Colombo, he said. Moreover, he would not be prepared to engage in other types of work merely to secure his own personal safety. Having seen "the harassment and the mistreatment suffered by innocent people at the hands of the authorities" his conscience required that he continue his human rights work. 19 On 7 May 1999, the Tribunal rejected the application and affirmed the decision not to grant the applicant a protection visa. It is this decision which the applicant seeks to have reviewed in these proceedings.