FEDERAL COURT OF AUSTRALIA Shanmugavarathan v Minister for Immigration & Multicultural Affairs [2000] FCA 1215 MIGRATION – protection visa – application for review of decision of the Refugee Review Tribunal – claim that applicant will be recognized from films of demonstrations in Australia against visiting Sri Lankan Ministers – whether failure to make findings of fact Migration Act 1958 (Cth) s 430(1)(c) and (d), s 476(1)(a), s 476(1)(g) and (4)(b) Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845, applied Paramanthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 62-4, applied THURAIRAJAH SHANMUGAVARATHAN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS V 170 of 2000 HEEREY J MELBOURNE 10 OCTOBER 2000 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 170 of 2000 BETWEEN: THURAIRAJAH SHANMUGAVARATHAN Applicant AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent JUDGE: HEEREY J DATE OF ORDER: 10 OCTOBER 2000 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The decision of the Refugee Review Tribunal made 25 February 2000 is set aside. 2. The applicant's application for review of the decision to refuse him a protection visa is remitted to the Tribunal differently constituted for rehearing according to law. 3. The respondent pay the applicant's costs, including reserved costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 170 of 2000 BETWEEN: THURAIRAJAH SHANMUGAVARATHAN Applicant AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent JUDGE: HEEREY J DATE: 10 OCTOBER 2000 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The applicant is a Sri Lankan citizen of Tamil ethnicity. He seeks review of a decision of the Refugee Review Tribunal given on 25 February 2000 affirming a decision of a delegate of the Minister not to grant him a protection visa. The Tribunal was not satisfied that the applicant was a refugee within the meaning of the Refugees Convention, that is to say a 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." The applicant's case 2 The applicant was born on 14 December 1953 in the Parish of Valvettihurai which is at the northernmost tip of Sri Lanka and in the Jaffna District. 3 He completed his education with tertiary study in accountancy and secured employment in this field. From November 1982 to July 1984 he worked outside Sri Lanka. In July 1984 he returned and attempted to find work in Colombo. This was a difficult period after the communal pogrom in July 1983 so the applicant decided to go to the north and live with his parents and sisters. He found the situation in Jaffna also to be very difficult. The family home was damaged in the fighting and at the end of October 1984 the family fled from their village to Jaffna City. At this time the applicant concluded that a separate nation for Tamils was essential for them to live with dignity. He became convinced that it was "justifiable to rise against tyranny and oppression". He decided to give some assistance, and when he was approached by cadres of the Liberation Tigers of Tamil Eelan (LTTE) he agreed to help them with his expertise as an accountant. 4 In February 1985 the applicant was offered employment in Oman for two years. Before he departed he was asked by members of the LTTE to raise funds while he was there. He agreed and subsequently raised funds as requested. He was careful in his dealings with the LTTE and they had implicit faith in him. This trust was supported also by the fact he and the leader of the LTTE, Prabakaran, had been classmates in their primary school days. 5 On 10 March 1987 the applicant returned to Sri Lanka and on the following day left for Jaffna where he stayed with his family for nearly two months. After the explosion of a bomb in Colombo at the Pettah Central Market the Sri Lankan government began major aerial bombardments of the Jaffna Peninsula. The applicant and his family fled from their home which was damaged by a direct hit. 6 In May 1987 the applicant again left for Oman and continued his fund raising activities. During this period the applicant heard of the deaths of many of his relatives during another military operation by the Sri Lankan government. There followed an accord between India and Sri Lanka and the introduction of the Indian Peace Keeping Force (IPKF) to Sri Lanka. 7 In August 1988 the applicant returned to Sri Lanka. In September he became engaged to his present wife. In October 1988 he returned to Oman and continued further fund raising for the LTTE. 8 In May 1989 the applicant returned to Sri Lanka and while in Jaffna with his wife was arrested by the IPKF and interrogated. He was detained for several days and severely tortured by the IPKF and members of the EPRLF, an anti-LTTE Tamil organization. The reason for this detention was that he came from the birthplace of the LTTE leader. He was released by intervention of his uncle who was a lawyer and a member of the Citizens' Committee. In a detailed statement lodged with his protection visa application the applicant said: "Immediately after my release I left for Colombo. Colombo was considered as a safe place for Tamils during that period because the LTTE and the Premadasa government directly engaged in peace talks and the atmosphere was cordial. Thereafter I didn't return to Jaffna." 9 Presumably at some unspecified time the applicant left the country. He continues: "I returned to Sri Lanka in February 1990 following the withdrawal of IPKF and EPRLF and my wife joined me in March 1990 to [sic] Oman since I was given family status by my employer." The applicant remained in Oman until July 1994. He continued his fund raising activities. 10 In September 1995 the applicant's contract in Oman ended and he and his wife returned to Sri Lanka in the second week of October. At that point the situation was "horrendous and disastrous. The arbitrary arrest and detention reached a point of zenith in Colombo and its suburbs in addition to disappearances and extra‑judicial killing." 11 The applicant and his wife decided to go to Jaffna as they had no permanent place in Colombo, the applicant did not have employment, and those in Colombo were requested to register themselves with the police. But apparently he did not in fact leave Colombo until the following year. 12 The applicant contacted his brother in Australia who then sent an application form for the applicant to migrate under the Special Assistance Category. The applicant's brother had previously in 1989 urged the applicant to migrate to Australia but at that time the applicant was happy with his work in Oman. He lodged an application for a special assistance visa with the Australian High Commission in Colombo in November 1995. Because he feared for his own safety and that of members of his family the applicant did not disclose his political fund raising activities. 13 The situation in Colombo became more dangerous after the Central Bank bomb explosion on 31 January 1996. The relatives with whom the applicant was staying became reluctant for him to remain with them further and he therefore applied for a visitor's visa to Australia. This was refused in February 1996. 14 On 20 April 1996 the applicant was arrested, detained at Kotahena police station and brutally assaulted. He was transferred from the police to the Counter Subversive Unit (CSU) and further assaulted and tortured by its officials. He says that apparently the reason for his arrest was that he was from Valvettithurai and had recently returned from abroad. He was released on 22 April with some others and directed to appear in court when notified. 15 After his release the applicant left Colombo and in May 1996 went with his wife to Puthukudiyiruppu where his parents and sister were living following their displacement from Valvettithurai due to the military offensive. In a subsequent statement lodged with the Tribunal on 4 May 1998 the applicant says that he and his wife "went to northern part of Sri Lanka our native place". The fighting became worse and by February 1997 the applicant decided that he had to leave the country by any means and for this reason went to Colombo with his wife. 16 On 10 March 1997 in Colombo the applicant was arrested by EPDP cadres and taken to an unauthorised detention camp. He was tortured for about a week and later released on payment of 70,000 rupees. After his release a friend arranged for the applicant to stay with a colleague in Hatton. Arrangements were made through an agent and a passport provided to the applicant. His exit was obtained by bribery of authorities at the airport. The applicant travelled to Australia and arrived on 24 May 1997. In his statement dated 10 July 1997, the applicant makes his apology to the Australian authorities for travelling on a forged passport but explains that it was because of the trauma and torture he suffered in Sri Lanka. 17 The applicant submitted that the general situation of human rights in Sri Lanka has deteriorated very badly. There is particular risk to Tamils. There were many reports which support this. 18 The applicant's claims concerning the dangerous situation for Tamils in Sri Lanka was supported by a submission from Amnesty International. 19 At the hearing the applicant also gave evidence of his involvement in making pro‑Tamil broadcasts on 3CR, an ethnic radio station in Melbourne. The applicant stated also that he had attended two demonstrations in Australia against visiting Ministers of the Sri Lankan government, one in Canberra and the other at the Hilton Hotel in Sydney. These demonstrations were filmed and at least one video of the demonstration had been shown in Sri Lanka. The applicant feared that film of him attending the demonstration would be shown in Sri Lanka and that his face would be identified and that he would therefore be at further risk of persecution should he return. The Tribunal's reasons for decision 20 The Tribunal summarized the applicant's claim and reviewed the applicable law. It then set out its discussion and findings. The salient observations of the Tribunal are as follows. 21 In relation to the applicant's arrest in 1989 the Tribunal said: "It is plausible that the applicant was detained by the IPKF in Jaffna in 1989, but he was released after three days. If he was suspected of being a member or active supporter of the LTTE and its leader, the Tribunal is satisfied he would not have been released, irrespective of his evidence that an influential uncle intervened. If he believed he was suspected of being an LTTE supporter, the Tribunal does not accept he would have gone to stay in Colombo where he would have been vulnerable to further interest from the authorities." 22 The Tribunal found that although he was detained for three days he was released because the authorities were satisfied he had no connection with the LTTE notwithstanding he had gone to the same school as its leader some 18 years previously. The Tribunal thought that conclusion was consistent with the applicant voluntarily returning to Sri Lanka in 1994 and again in 1995. 23 On the latter return the applicant went to Colombo but thought it was insecure. After referring to the applicant's statement quoted above about the "horrendous and disastrous" situation in Colombo the Tribunal said: "He then went to Jaffna. He was not harassed in either location, despite the ongoing war between the LTTE and the government security forces. Despite his description of the situation in Colombo, he then returned to that city. In considering those circumstances, the Tribunal concludes that he was not suspected of any affiliation with the LTTE and nor did he believe he was under any suspicion." 24 The Tribunal discussed newspaper reports about LTTE fundraising by Tamil expatriates. The Tribunal observed that it was apparent that Sri Lankan authorities had been aware of LTTE fundraising in foreign countries and have vigorously campaigned to thwart it since at least 1994. In those circumstances the Tribunal found it implausible that the applicant's fundraising activities would go unnoticed by the Sri Lankan authorities or, at the least, that the applicant would believe his activities had gone unnoticed and he was therefore confident of returning to Colombo without facing any consequences for reason of those activities. 25 The Tribunal was satisfied the reason the applicant failed to disclose his LTTE activist activities in his Australian migration application in 1995 was that this aspect of his claims was untrue. 26 The Tribunal did not accept the applicant's claim that he was detained in April 1996. He had a history of visiting Colombo without being harassed and was not detained in the immediate crackdown after the bank bombing in January 1996. He did not fit the profile of LTTE suspects. If he had been detained on suspicion of involvement with the LTTE the Tribunal did not accept he would have been released after three days. Even if he was detained it was as a consequence of routine security measures in the face of a significant terrorist attack. His release after a brief period demonstrated that he was cleared of any suspicion of LTTE involvement and that was consistent with his return to Colombo at a later date. 27 The Tribunal doubted the applicant's claim to have been detained by the EPDP in March 1997 but even if that claim were true it was motivated by greed and not by ethnicity, political opinion or any other Convention reason. The Tribunal considered that Sri Lankans who have lived abroad are a disparate group and cannot properly be characterised as a particular social group for the purposes of the Convention. 28 The Tribunal accepted that the applicant had made some contribution to a Tamil radio program in Melbourne. It accepted the evidence given by the director of that program that it was not associated with the LTTE but with assisting Tamil refugees. There was no available evidence to indicate that sympathizing with Tamil victims of the war or expressing or providing support for those victims led to a real chance of prosecution at the hands of the authorities. It was only those who support or participate in the LTTE cause, or were suspected of doing so, who may be at risk of punishment by the authorities. The applicant had contributed to a radio show that was not associated with the LTTE and had no history of supporting that group. The Tribunal noted that he did not even mention his participation in the radio show in early submissions, explaining at the hearing that he believed it to be insignificant. 29 The Tribunal then discussed the applicant's fear to claim persecution not only on account of his real or imputed political opinions but also because he was a Tamil from Jaffna. The Tribunal referred to a United Kingdom Home Office report of September 1999 on conditions for Tamils in Colombo, but observed that the applicant was 46 years old and although born in the north worked in Colombo between 1975 and 1981 and worked abroad since the early 1980s and was a regular visitor to Colombo. Despite there being times of stringent security checks he only encountered difficulties on one occasion and was cleared of connections with the LTTE. 30 After dealing with a claim that he might face persecution as a returned asylum seeker the Tribunal concluded that the applicant did not have a well-founded fear of persecution for the reasons he claimed or for any other Convention reason. Arguments on review 31 Counsel for the applicant referred to three instances, each of which he submitted involved the failure to set out findings on material questions of facts or refer to the evidence upon which those findings were based: Migration Act 1958 (Cth) s 430(1)(c) and (d), s 476(1)(a), Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845 or a failure to consider and determinate substantive issues: Paramanthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 62-4 or no evidence (s 476(1)(g) and (4)(b)). I shall deal with these in turn. 32 The first instance was the Tribunal, in relation to the applicant's alleged arrest by the IPKF in October 1989, referring to the applicant as having "gone to stay in Colombo where he would have been vulnerable from further interest from the authorities." It was said that there was no evidence for this; the applicant did not stay in Colombo. 33 But in the applicant's statement in support of the protection visa application he said "immediately after my release I left for Colombo". 34 The natural meaning of this, or at any rate a meaning that was open to the Tribunal, was that Colombo was his destination and not merely a place through which he passed on his way to somewhere else. This meaning is reinforced by what follows, namely the applicant stating that Colombo was considered a safe place for Tamils during that period. He is giving an explanation of why he came to stay in Colombo, albeit for a period the length of which he does not specify. 35 Secondly, it is pointed out that the Tribunal, speaking of the time after the applicant's alleged release from detention in April 1996, said "he then went to Jaffna" when the applicant's statement was to the effect that he went to Puthukudiyiruppu. However, from a map of Sri Lanka Puthukudiyiruppa appears to be about 50 kilometres by road from the nearest point of the Jaffna District but about 350 kilometres from Colombo. If there was a misdescription it is not significant because the place where the applicant went appears at least near enough to Jaffna to warrant the Tribunal's observation that he was not harassed despite the ongoing war between the LTTE and the government security forces. Whatever the precise location of the place the applicant went to, it was in the north and a place where fighting continued. In the applicant's statement he said he witnessed "the horrors of war and the plight of refugees". 36 An alternative possibility put by counsel for the Minister is that the Tribunal was relying on the applicant's subsequent statement where he said that "we went to northern part of Sri Lanka, our native place". 37 The third instance however has more substance. The Tribunal apparently overlooked and failed to make findings as to the applicant's alleged involvement in demonstrations in Australia. This was put forward by him as an important issue. At an early stage in the hearing, after explaining the procedures, the Tribunal asked the applicant, through an interpreter, "Can you tell me what you think would happen if you went to Sri Lanka?" 38 The applicant responded as follows: "I have been arrested twice already, once by the police and once by the movement and I have been tortured. I'm terrified now that this can happen again because all my involvement with the LTTE might have been unknown so far, but now they might have obtained details about my involvement. This happened in '96/97 period, but earlier in '89 I was arrested by the Army as well. I'm afraid because I might get into a situation worse than what I have experienced and I'm afraid of that. Also after coming here I have been politically involved, active, like the radio I'm been presenting the radio programs and also in protest marches and objecting to various events. And when the Minister was here I took part in the protest march waving black flags and things. And this has been filmed and shown in Sri Lankan television. So my picture, photograph, whatever it might have been, made available there, or people might have seen it and I do worry a lot about that. Okay, just a minute, bit confusing. Regards radio program, there's an organisation called SPUR(?) that's keeping a vigil on what's going on here. That's – I'm not sure." 39 It is true that, as already mentioned, the Tribunal dealt with the applicant's involvement in the radio programme. But although that had something in common with the alleged demonstration incidents in that all fell within the category of activities by the applicant in Australia which might warrant a finding that he was a refugee sur place, nevertheless the applicant's account of the demonstrations raised quite discrete factual issue on which the Tribunal was required to make findings. 40 Accordingly the application will be allowed and the decision of the Tribunal set aside. The matter will be remitted for rehearing by the Tribunal differently constituted. There will be an order that the respondent pay the applicant's costs, including reserved costs. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 10 October 2000 Counsel for the Applicant: Mr A Krohn Solicitor for the Applicant: Mr KP Aravindan Counsel for the Respondent: Mr P R D Gray Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 27 September 2000 Date of Judgment: 10 October 2000