FEDERAL COURT OF AUSTRALIA Balan v Minister for Immigration & Multicultural Affairs [2000] FCA 384 MIGRATION – appeal from decision of primary judge dismissing application to review decision of Refugee Review Tribunal – application for protection visa – claim of well-founded fear of persecution –whether security measures designed to protect general public constitute persecution – whether facts justified inference that applicant was not at risk of persecution – whether primary judge erred in concluding that there was no evidence that applicant would be singled out for discrimination Migration Act 1958 (Cth) - ss 36, 476 Administrative Decisions (Judicial Review) Act 1977 (Cth) Applicant A v Minister for Immigration and Multicultural Affairs (1997) 190 CLR 225 Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 Arudselvan v Minister for Immigration & Multicultural Affairs [1999] FCA 622 Balan v Minister for Immigration & Multicultural Affairs [1999] FCA 827 KOHILARATNAM BALAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS D 14 OF 1999 DRUMMOND, DOWSETT & KATZ JJ 31 MARCH 2000 BRISBANE IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY D 14 OF 1999 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: KOHILARATNAM BALAN APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGES: DRUMMOND, DOWSETT & KATZ JJ DATE OF ORDER: 31 MARCH 2000 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY D 14 OF 1999 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: KOHILARATNAM BALAN APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGES: DRUMMOND, DOWSETT & KATZ JJ DATE: 31 MARCH 2000 PLACE: BRISBANE REASONS FOR JUDGMENT THE COURT: 1 The appellant is a Tamil, born in Jaffna Polikandi in the north of Sri Lanka on 11 September 1967. She arrived in this country with her husband on 4 February 1996. He is also a Tamil, but from Colombo in the south. On 15 January 1997 they both applied for protection visas pursuant to s 36 of the Migration Act 1958 (Cth) (the "Act"). They then had one child, and the appellant was again pregnant. We assume that a second child has been born. The relevant delegate of the Minister concluded that they were not refugees, and so their applications were refused. The Refugee Review Tribunal declined to intervene, and an application in this Court for review of that decision was dismissed by O'Loughlin J on 23 June 1999. This is an appeal from his Honour's decision. At the hearing of the appeal it was conceded that there was no significant dispute concerning primary facts, the criticisms of his Honour's decision primarily concerning the availability of certain inferences based upon them. In those circumstances it is possible to be brief in recording such facts. Summary of Relevant Facts 2 The appellant grew up in the north of Sri Lanka amid ongoing confrontation between a militant Tamil organization known as the Liberation Tigers of Tamil Eelam ("LTTE" or "Tigers") and government forces. She was sympathetic towards the Tigers and in 1985 became involved with them to the extent of sewing their uniforms. She is a tailoress by occupation. In 1988 she was arrested by the Indian Peacekeeping Force (which was presumably assisting the government forces) because she was suspected of assisting the Tigers. She was assaulted and tortured during her time in custody but was subsequently released on condition that she not continue her activities with the Tigers. It seems that her time in custody was limited to a few days. After her release she was again approached by the Tigers to assist in sewing uniforms, but she declined to do so because of the conditions of her release. 3 Her narrative then jumps to 1990, by which time the Indian Peacekeeping Force had withdrawn, and the Tigers had gained control of Jaffna. There was, however, continuing hostility between them and government forces. At this time the appellant resumed her work with the Tigers, sewing uniforms. She subsequently took a self-defence course with them and was given an "ID card". In 1991 the government launched an operation against the Tigers in the Jaffna area and, fearful for her own safety, and particularly fearful that she might be recruited to fight against the government, the appellant decided to leave Jaffna. Her parents arranged a marriage with her present husband who then lived in Bahrain. He came to Sri Lanka in August 1991. They met and travelled to Colombo, marrying there in September. He returned to Bahrain. She joined him in November. She said that thereafter, her parents were harassed by the Tigers. They moved to Colombo in 1993 to escape such harassment. 4 In December 1995 the appellant was in need of fertility treatment to assist her in falling pregnant. Her mother was also seriously ill. She decided to travel to Singapore for treatment and to visit her mother in Colombo. She did so, staying in Colombo for four days. We will return to the evidence concerning her visit at a later stage as it is the principal basis for one of the grounds of appeal. In Singapore she was told that it would be more economical for her to undertake treatment in Australia, and she decided to do this. She returned to Colombo for a second visit and then came to Australia with her husband. The appellant underwent appropriate treatment in this country and fell pregnant in August 1996. By this time, however, both she and her husband had lost their employment in Bahrain and were unable to return. 5 The appellant claims to be fearful for her own safety should she return to Sri Lanka, relying upon a number of matters, including a bombing in a suburb of Colombo on 24 July 1996 and increased tension in Colombo and surrounding areas. She claims that Tamils are subject to assault, abduction and humiliation. The appellant claims that on 25 July 1996 her father was arrested and forced to reveal information about her, including her sympathy for the Tigers. He was released on condition that he co-operate with government forces in order to arrest her should she return to Sri Lanka. She believes that as a result of the information supplied by her father, she is now listed with the police. 6 Although the thrust of the case before his Honour appears to have concerned the appellant's fear of persecution at the hands of the Sri Lankan government, she also relied upon her experiences with the Indian Peacekeeping Force. It is quite clear that there can be no continuing threat from that direction. She also appears to have relied to some extent upon the possibility of persecution by Tamil groups opposed to the Tigers, although it is difficult to understand why this should be so. In any event, no point relevant to this aspect was raised on appeal. REFUGEE STATUS 7 For present purposes, a person is a refugee if: 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 as a result of such events, is unable or, owing to such fear, is unwilling to return to it. To be a refugee, the appellant must be outside of Sri Lanka and unwilling to return thereto because of well-founded fear of persecution for one of the specified reasons, often described as "Convention reasons". The Tribunal's Findings and Reasons 8 The Tribunal accepted the appellant's evidence as to her treatment by the Indian Peacekeeping Force but concluded that there was no prospect that she would face any future problems from that direction. This conclusion seems to be beyond challenge. As to the possibility of persecution by the Sri Lankan government, the Tribunal considered it relevant that the appellant had been able to move from the north to Colombo without any difficulty, that she had married and left the country and that in 1996 or thereabouts, she twice entered and left Sri Lanka, again without experiencing any difficulty. The Tribunal concluded: This indicates to the Tribunal that she is not at risk from the authorities. We will return to this matter at a later stage. 9 As to her concern that her father had disclosed information to the government which may have resulted in her being listed with the police, the Tribunal rejected her evidence, saying: The Applicant claims she is now at risk because of the information that her father has revealed about her. However the Tribunal does not consider this plausible. At the time her father was apparently detained in 1996 the applicant was not living in and had not lived in Sri Lanka for a significant period of time. Even if the Applicant's father were questioned about his children he would be able to explain that the Applicant was married and living overseas. The Tribunal considers the Applicant's claim that her father revealed her involvement in the LTTE to be far-fetched. Therefore the Tribunal does not accept that the Applicant is on any police list as a suspected LTTE member or supporter. This is another matter to which we will return at a later stage. 10 The Tribunal considered an amount of material describing the political situation in Sri Lanka, particularly regarding security measures taken by the Sri Lankan government, affecting Tamils in Colombo. The most recent available item of information referred to in the Tribunal's reasons was a cable from the Department of Foreign Affairs and Trade dated 23 March 1998, which states: Since October 1997, the LTTE has launched an attack in the south every month, including two in Colombo, one in Kandy and one in Galle. The frequency of LTTE attacks has led to a considerable tightening of security in Colombo. In the last month an additional reason for tighter security was the 4 February celebrations for the fiftieth anniversary of independence. The tighter security situation is felt especially by members of the Tamil community. As security tightens, more people are being arrested, and the impact of the security measures are being felt by more Tamil people. … No human rights NGOs, lawyers, or the HRC are able to provide any figures on arrests and detentions over the last six months. We have not been able to get the figures from the security forces. Our contacts believe that the number of arrests has increased since October, but they estimate that the percentage of people detained for longer than twenty-four hours remains at around 5 per cent. There has been an increase in the number of cordon and search operations (round-ups), particularly in the northern suburbs of Colombo. … Given the nature of the terrorist threat and the recent increase in bomb attacks, no one questions that security procedures in Colombo must be tightened. The security measures do cause great inconvenience to the Tamil population, and many people feel humiliated by them. For the most part they continue to be properly conducted and do not amount to harassment or physical danger, but in the context of the current security climate, the room for abuse of the regulations remains and incidents of abuse do occur. 11 The Tribunal continued (apparently referring to other material): This information sets out a number of risk factors in Colombo. If a person is young, Tamil and recently arrived from the north or east one is particularly at risk. Other risk factors include not possessing an identity card, not having someone to vouch for you and establish your bona fides, and not speaking Singhalese. No doubt any link to the LTTE increases the risk of mistreatment. Some of these factors apply to the Applicant. However, in this case the Applicant will not fit the description of a young Tamil recently arrived from the north or east. She has been overseas for a considerable period of the conflict. She has relatives in Colombo who can come to her assistance. Her husband is a Colombo Tamil. He can also come to her assistance if she were detained by the security forces. The Applicant has returned to Sri Lanka on two occasions since her initial departure and has not been detained on any occasion during these visits. The Tribunal does not accept that there is any possibility she will be seen as someone having LTTE links. She has one child and is due to give birth again this year. In such circumstances the Tribunal considers the possibility of the Applicant facing persecution from the security forces to be remote. 12 Obviously enough, there are significant restraints upon the activities of Tamils in Colombo. Such restraints are apparently designed to protect the general population in Colombo from violence initiated by LTTE who are, of course, Tamils. In Applicant A v Minister for Immigration and Multicultural Affairs (1997) 190 CLR 225 at 258, McHugh J said: Conduct will not constitute persecution, however, if it is appropriate and adapted to achieving some legitimate object of the country of the refugee. A legitimate object will ordinarily be an object whose pursuit is required in order to protect or promote the general welfare of the State and its citizens. The enforcement of a generally applicable criminal law does not ordinarily constitute persecution … . Nor is the enforcement of laws designed to protect the general welfare of the State ordinarily persecutory even though the laws may place additional burdens on the members of a particular race, religion or nationality or social group. Thus, a law providing for the detention of the members of a particular race engaged in a civil war may not amount to persecution even though that law affects only members of that race … . 13 These observations suggest that appropriate steps taken by the Sri Lankan government to protect the citizens of Colombo from violence at the hands of the Tigers would not necessarily constitute persecution of Tamils, even if those steps inevitably involved the placing of "additional burdens" on Tamils not associated with the Tigers. Such "additional burdens" might even include detention. The Tribunal appears to have proceeded upon the basis that the inconvenience suffered by all Tamils as a result of government security measures does not amount to persecution for a Convention reason, but that some Tamils may be singled out for treatment which may amount to such persecution. The Tribunal concluded that the appellant was not such a person. Grounds of Appeal 14 At the commencement of the hearing of the appeal, the appellant was given leave to amend the notice of appeal to advance three new grounds numbered 2, 3 and 4. In the absence of any opposition this application was granted. The three grounds are as follows: 2. His Honour erred in failing to conclude that the Tribunal's findings concerning the appellant returning to Colombo after her initial departure from Sri Lanka constituted an error or law. 3. His Honour erred in finding that there was no material before the Tribunal that would suggest that the appellant might be singled out for discriminatory treatment. 4. His Honour erred in concluding that there was not present the necessary factual matrix that required the Tribunal to give appellant's circumstances 'close scrutiny'. These were the only grounds argued. It is unfortunate that the grounds fail to identify the relevance of the alleged errors to the ultimate question with which his Honour was concerned, namely review of the Tribunal's decision upon one or more of the grounds specified in s 476 of the Act. None of the "errors" alleged in the grounds of appeal has any consequence unless it led O'Loughlin J to fail to intervene when he should have done so. It will be necessary for us to try to identify the possible relevance of such "errors" to the available grounds for review of the Tribunal's decision. Ground 2 15 This ground relates to that section of the reasons of the Tribunal in which it concluded that because the appellant had been able to enter and leave the country on two occasions in 1996 for the purpose of visiting her mother, experiencing no difficulties, "This indicates to the Tribunal that she is not at risk from the authorities". This finding was challenged in the proceedings before O'Loughlin J but upheld. Judicial review is available only upon one of the grounds identified in subs 476(1), as limited or explained by subss 476(2), (3) and (4). O'Loughlin J set out in his reasons the grounds specified in pars (a) and (e) of subs 476(1), presumably because they were treated as relevant in the course of argument. The ground prescribed by par 476(1)(a) is: That procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed … . 16 The ground prescribed by par 476(1)(e) is: That the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision … . 17 Ground of appeal 2 effectively asserts that O'Loughlin J ought to have concluded that the appellant's two uneventful trips to Sri Lanka did not justify an inference that she was "not at risk from the authorities". Presumably it is said to follow that the Tribunal was also in error in drawing such an inference. In arguing the appeal, the ground was further refined, becoming an assertion that the Tribunal's finding (that the appellant was not at risk) was based upon an erroneous assumption that her two visits to Sri Lanka had occurred in what counsel described as "in effect, ordinary circumstances". Notwithstanding the apparent reliance upon other grounds prescribed in subs 476(1) before O'Loughlin J, the appellant suggested that this ground of appeal related to possible review upon the ground specified in par 476(1)(g) of the Act as follows: That there was no evidence or other material to justify the making of the decision. 18 That ground of review is narrowed by subs 476(4) which provides: The ground specified in paragraph (1)(g) is not to be taken to have been made out unless: (a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist. 19 His Honour could only have intervened if the alleged factual error by the Tribunal satisfied the conditions specified in par 476(1)(g). This ground of appeal can only be upheld if his Honour ought to have so intervened. 20 In Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212, especially at 220-221 (per Black CJ, Spender and Gummow JJ concurring), this Court considered a materially similar provision in the Administrative Decisions (Judicial Review) Act 1977 (Cth). The effect of that decision for present purposes is that in order to establish the ground specified in par 476(1)(g), an applicant must also satisfy one or other of the alternative requirements of subs 476(4). See also Arudselvan v Minister for Immigration & Multicultural Affairs [1999] FCA 622 at par 52 (per Katz J). For present purposes, the appellant suggests that her case falls within par 476(4)(b). It follows that she must show that: · The Tribunal based its decision upon the "fact" that the appellant's visits to Sri Lanka occurred in "ordinary circumstances". · Such "fact did not exist". · There was no evidence or other material to justify the making of the decision. 21 It is difficult to know what is meant by the expression "ordinary circumstances". We do not understand the Tribunal or his Honour to have used it. The appellant asserts that the circumstances of the visits were other than ordinary because she took steps to conceal her presence in the country. Her sister-in-law worked at the Colombo airport and was concerned for the appellant's safety because of her previous association with the Tigers. The appellant timed at least one of her arrivals in Colombo to coincide with her sister-in-law being rostered for duty. It was implied that the latter assisted her in passing through security points without detection, although she gave no details of how this was achieved. The appellant also said that she registered at the relevant police station using her husband's name, although she was known in Colombo by her maiden name, implying that this may also have assisted her to avoid detection. On one visit, she stayed at the local hospital for the same reason. Her sister-in-law was subsequently dismissed from her employment at the airport, allegedly because she was suspected of assisting Tamils, including Tigers. This body of evidence demonstrates that the appellant took steps to minimize the risk of detection of her presence in the country because of the fears expressed by her sister-in-law which she, perhaps, shared, but it does not demonstrate any basis for such fears. The appellant's argument is that because she took these steps, the government may not have been aware of her presence in Colombo, and that it therefore cannot be inferred that her two uneventful visits demonstrate that she is not at risk of persecution. 22 This argument fails simply because there is no basis for concluding that the Tribunal treated such visits as having occurred in "ordinary circumstances". At AB 99.6 (page 5 of its reasons), the Tribunal referred to the fact that the appellant was assisted by her sister-in-law. At AB 100.3 (page 6 of its reasons), it referred to her use of her husband's name to register at the police station. It also referred to her passing "through the airport", presumably a reference to immigration procedures. It is not clear whether the assistance from the appellant's sister-in-law extended to dealing with the immigration authorities. There is no reason to believe that the Tribunal acted upon any erroneous view of the circumstances surrounding those visits. The appellant's precautions may have weakened the strength of any inference available from their uneventful nature, but that could not be a basis for review. It has not been demonstrated that the Tribunal based its decision on a non-existent fact, nor that O'Loughlin J fell into error. This ground of appeal must fail. Ground 3 23 This ground relates to the appellant's status as a former Tigers' sympathizer and supporter. It is asserted that O'Loughlin J "erred in finding that there was no material before the Tribunal that would suggest that the appellant might be singled out for discriminatory treatment". The passage in question (par 42) must be considered in context. His Honour had discussed the need to demonstrate both subjective fear of persecution and evidence of a "real chance" of such persecution. O'Loughlin J then pointed out that this involved an assessment of whether there was a "real chance" that the appellant's past activities might result in the attribution to her of a "political profile" and also of whether there was a "real chance" that she would be persecuted because of such profile. 24 His Honour observed that all Tamils were likely to be subjected to unwarranted and unexpected harassment because of "civil and communal disturbance", apparently a reference to the LTTE's terrorist campaign and the government's security measures. His Honour then concluded that there was no evidence that the appellant would be singled out for discrimination, either because she was Tamil or because of her former links to the Tigers. As we have observed, the Tribunal had proceeded on the basis that the "unwarranted and unexpected harassment" of Tamils referred to by his Honour was a consequence of civil disturbance and government security measures and did not generally constitute persecution for a Convention reason. It concluded that only some Tamils were at risk of persecution, and that the appellant was not in that category. This ground of appeal is therefore properly understood as an assertion that O'Loughlin J ought to have reviewed the Tribunal's decision because it wrongly found that there was no "real chance" of her being subjected to persecution. The appellant relied upon her claim that her father had informed against her and also asserted a fear that people who had known her when she was actively supporting the Tigers might inform against her. Thirdly, she claimed that registration with the police would disclose her identity to the authorities. 25 As we have observed, the Tribunal rejected her evidence concerning her father. The appellant's counsel argued that it was possible to construe the Tribunal's reasons as not rejecting that evidence in its entirety. We can see no basis for the view that the Tribunal accepted any part of the appellant's claim in this respect. As to her fears of being informed against or identified as a result of registering with the police, these are merely elements of her subjective fear and of her basis for that fear. The argument is therefore no more than an indirect assertion that the Tribunal was in error in concluding that because of the passage of time and the absence of any harassment since 1988, the appellant's fear of persecution was not well-founded. Apart from her own fear, there was no evidence suggesting any particular risk of her being betrayed, nor that the government would persecute her should it become aware of her presence in the country. When understood in context, his Honour's observation as to the evidence was correct. There is no merit in this ground of appeal. Ground 4 26 Ground 4 is rather difficult to understand. In the course of argument counsel for the appellant agreed that it was dependent upon grounds 2 and 3. If so, then as each of those grounds has failed, ground 4 must similarly fail. It is, however, probably worthwhile explaining in a little more detail what appears to have been meant by the expression "factual matrix" in this case. The passage appears in par 53 of his Honour's reasons as follows: Counsel for Mrs Balan claimed that the Tribunal failed to give her circumstances 'close scrutiny', and referred to the remarks of Merkel J in Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 at 50 where his Honour said: 'However, the summary round up, arrest, detention, torture and extortion of young Tamil males from the Jaffna peninsular who are in Colombo or other government-controlled areas, is not conducted in accordance with or authorized by such laws. Any mantle of legitimacy is lost in respect of such conduct which is plainly discriminatory and, as was pointed out by Burchett J in Savarasa, will constitute persecution. When the material before the RRT raises such a case, as it clearly did in each of the present matters, the conduct in question will, as was stated by McHugh J in Applicant A (at 259) become 'inherently suspect and requires close scrutiny' in order to ascertain if it was engaged in for a Convention reason. As Davies J observed, the excess of the 'measures' taken can properly found an inference of an intent to inflict harm for a Convention reason. (at 50)' That passage, important though it is, is not one of general application. Before it can be brought into operation, the necessary factual matrix must be present. That factual matrix is not present in this case. In this case the relevant facts, as found by the Tribunal are that Mrs Balan was adversely treated by the Indian PKF over ten years ago because of her connection with the Tigers but was released within a very short time upon her promise to cease her association. Since then she has not experienced any form of trouble from any source. 27 Merkel J appears to have been dealing with the problems addressed by McHugh J in Applicant A to which we have referred above, namely whether measures directed against a particular group, clearly involving an element of discrimination, amount to persecution for a Convention reason. We agree that such discriminatory conduct will usually invite close scrutiny to ascertain whether such discrimination "designed to protect the general welfare of the state" constitutes relevant persecution. However the observations by Merkel J should not be read as creating a further ground for review of the Tribunal's decisions. It is rather advice as to how such a problem should be approached. 28 We assume that this ground of appeal involves an assertion that the Tribunal failed to examine closely the government security measures to see if they constituted persecution for a Convention reason and/or an assertion that the Tribunal had not examined the appellant's circumstances with sufficient care in order to determine whether she was at risk. Even assuming that such criticism constitutes a ground for review, the basis for it is not apparent. The most recent evidence from the Department of Foreign Affairs and Trade suggested that the security provisions did not constitute persecution, although they had the potential to be abused. The Tribunal appears to have accepted that view, but to have had regard also to suggestions that some Tamils would be at risk of suffering persecution as the result of such abuse. The Tribunal concluded, having regard to the appellant's circumstances, that she was not such a person. This is the point made by his Honour at par 53. There is simply no basis for either criticism of the Tribunal's decision or of the way in which O'Loughlin J dealt with the matter. 29 The appeal should be dismissed with costs. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate: Dated: 31 March 2000 Counsel for the Appellant: Mr D P O'Gorman Solicitor for the Appellant: Brian L Johns Counsel for the Respondent: Ms C E Holmes SC Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 18 February 2000 Date of Judgment: 31 March 2000