FEDERAL COURT OF AUSTRALIA Murugesu v Minister for Immigration and Multicultural Affairs [2000] FCA 1411 MIGRATION – protection visa – decision of Refugee Review Tribunal – whether failure to make findings on material questions of fact and determine substantive issues – reasonableness of relocation of Tamil to Colombo – applicant once arrested and from the north of Sri Lanka – whether necessary to make findings as to reasonableness based on Tamil ethnicity per se – whether failure to consider all circumstances relating to relocation Judiciary Act 1903 (Cth) s 44(a) Migration Act 1958 (Cth) s 430(1)(c) and (d) Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 443 applied 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 62-64 applied PUSPHARAJAH MURUGESU v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NO V 97 OF 2000 HEEREY J 10 OCTOBER 2000 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 97 of 2000 BETWEEN: PUSPHARAJAH MURUGESU APPLICANT AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: HEEREY J DATE OF ORDER: 10 OCTOBER 2000 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application for writs of prohibition, certiorari and mandamus and injunctions, insofar as it is based on the grounds in par 3 of the Order of Hayne J in the High Court of Australia on 23 November 1999, is dismissed. 2. The applicant pay the respondent's costs to be taxed, included 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 97 of 2000 BETWEEN: PUSPHARAJAH MURUGESU APPLICANT AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: HEEREY J DATE: 10 OCTOBER 2000 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 This matter comes to the Federal Court by way of remitter from the High Court pursuant to s 44(2)(a) of the Judiciary Act 1903 (Cth). The applicant, a citizen of Sri Lanka now aged 47, arrived in Australia on 17 February 1995. He applied for a protection visa on 15 May 1995. His application was refused by a delegate of the Minister on 13 February 1996. He applied for review by the Refugee Review Tribunal which on 29 July 1996 made a decision that he was not a refugee in terms of the Refugees Convention and affirmed the decision of the primary decision-maker. 2 In the years that followed the applicant applied unsuccessfully for the Minister to substitute a more favourable decision under s 417(1) of the Migration Act 1958 (Cth) (the Act). 3 On 23 December 1998 the applicant filed an application no M130 of 1998 in the Melbourne office of the Registry of the High Court of Australia seeking relief by way of mandamus, certiorari, prohibition and injunctions against the Minister and the Tribunal. 4 On 23 November 1999 Hayne J made orders which included an order remitting to the Federal Court that part of the matter pending in the High Court in which the applicant sought mandamus, certiorari, prohibition and an injunction on the grounds that (a) the Tribunal failed to observe procedures that were required by Act or the Regulations; (b) the Tribunal did not have jurisdiction to make the decision it did; (c) the Tribunal's decision was not authorized by the Act or the Regulations; (d) the Tribunal's decision involved an error of law. Section 485(3) of the Act limits the powers of this Court in refugee matters remitted by the High Court to powers applicable on an application for review under Pt 8. The applicant's case 5 The applicant's claim for refugee status were based on (imputed) political opinion and race. He claimed that as a Tamil he was in danger of persecution both from the supporters of the Liberation Tigers of Tamil Eelam (LTTE) and Sri Lankan government forces. 6 From 1987 to 1991 the applicant lived with his wife and child at 7th Mile Post Vavuniya which is in the Northern Province of Sri Lanka. He conducted a hire van transport business. At that time Vavuniya was under the control of the LTTE. When Government forces moved north into this area the LTTE directed the applicant and his family to the Madhu refugee camp which was under LTTE control. 7 The applicant remained at the camp from March or April 1991 to February 1994. He conducted a clothing and grocery business. He provided supplies for a Mr Thangrarajah who ran a shop at the camp. A Mr Rathinam was also a supplier to Mr Thangrarajah. The three men became good friends. Approximately twice a month the applicant travelled from the camp to Colombo for goods and supplies for his business. The LTTE issued him with a pass. On these trips he also delivered letters and money for Mr Thangrarajah and Mr Rathinam. 8 LTTE commandos frequently visited Mr Thangrarajah's shop. These visits were amicable until one day in July 1993 the commandos took away Mr Thangrarajah's wife and one of his children. They disappeared and were never seen again. Shortly afterwards in September 1993 the commandos took away Mr Rathinam and publicly executed him. 9 The applicant was greatly distressed and feared for the lives of his family and himself. LTTE commandos came and interrogated him on two occasions asking him why he visited Colombo and what was his connection with Mr Thangrarajah and Mr Rathinam. Other Tamils told him that the LTTE suspected him of involvement against them in connection with Mr Thangrarajah and Mr Rathinam. Fearful for their safety the applicant and his family left the Madhu camp in February 1994 and went to Mullikulam which was also under LTTE control. 10 By April 1994 the applicant knew that the Sri Lankan army was moving north. He took his family back to his home at 7th Mile Post, which was still under LTTE control. The house had been damaged in the fighting. About 10 days later the Sri Lankan army had advanced to the 10th Mile Post. The applicant's home came under the protection of the Government forces. He resettled his family in their home and then returned to Mullikulam as he believed that the army would round up all Tamil males. 11 On 20 June 1994 the applicant travelled from his home to Colombo with a pass from the police post at Vavuniya. He also had a pass from the LTTE. In an affidavit sworn on 12 May 1995 in support of his initial visa application the applicant gave the following account of events in Colombo. "22 I applied to the Australian High Commission for a visa to go to Australia. The Australian High Commission refused my visa request. Later on that same day I was arrested on the suspicion that I was a Tamil tiger by the Sri Lankan police (an extract marked with the letter E is a copy of the police report). Later I was released. 23 As a result of my arrest I knew the Sri Lankan Government forces would be after me because I had been noticed and they do not allow a Tamil from the north to live in peace. They arrest Tamils from the north, torture and execute them. I had come to the end of the road." 12 Exhibit E is a typed document in English not on any printed letterhead but with a typed address "Police Station Kotahena" and the date 6 July 1994. It certifies that the applicant is the holder of a national identity card residing at a particular address in Colombo and "was arrested on 24.06.94 and released on 25.06.94 after screening". 13 The applicant then paid a large sum of money to obtain a false passport in a Singhalese name. The Tribunal's Reasons for Decision 14 The Tribunal referred to the Convention definition of a refugee, 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." and authorities which expound on the definition. 15 The Tribunal briefly summarized the political history of Sri Lanka since independence in 1948 and concluded with the following observation: "This history of Sri Lanka indicates that the past decade has been one of civil war, terrorism and political assassination in which demands for independence for the Tamil people in the north have been fuelled by racial and religious hatred between the Government forces and the Tamil guerillas principally the LTTE. In the context of relentless ethnic conflict, human rights particularly of the civilian Tamil population, have been abused by both security forces and the LTTE." 16 After recounting reports of recent Government military successes in the Jaffna area the Tribunal noted that it was: " … satisfied that although the Government is largely in control of the north and the civil war has been greatly diminished in scope, it has not totally abated and that the security controls introduced to deal with it have a major impact on human rights throughout Sri Lanka." 17 The Tribunal referred to a number of authorities on the approach towards assessing credibility for applicants for refugee status. It notes that the "generalized ethnic conflict" in itself was not a ground for protection under the convention, citing Hathaway's "Law of Refugee Status" pp 93-94. The Tribunal stated: "The Tribunal accepts that the applicant has a deep and enduring fear of returning to Sri Lanka and that the subjective element of the test is satisfied. The Tribunal must then consider whether the applicant's fear is objectively founded in that the civil war has a differential impact of [sic] him for a Convention reason if he returns. It has considered whether he can safely return to that part of Sri Lanka where his home is located and if not whether he can reasonably relocate to another safe part of the country." 18 The Tribunal then turned to consider the applicant's principal claim which was that he would be "persecuted by the LTTE because he associated with traders who disappeared or were killed by the LTTE at the Madhu refugee camp". The Tribunal did not accept that the applicant had been specifically targeted by the LTTE, whether or not he had any association with the two traders. Although he claimed to have been questioned twice by the LTTE, the Tribunal did not accept that the LTTE would allow him to travel freely in and out of its territory. Further, his claim was inconsistent with his decision to leave his family in the Government controlled area and return to the LTTE controlled area in April 1994. 19 Nevertheless while the Tribunal had "serious doubts" about much of the applicant's evidence, those doubts were not sufficient to displace a real chance of persecution, given the resurgence of the Tamil Tigers in the north as noted in recent news reports. Even though he may not have been specifically targeted in the past, the Tribunal found that there was a real chance that the applicant could suffer persecution at the hands of the LTTE if he returned to his home at the 7th Mile Post. The question then was whether he could reasonably relocate to another safe haven in Sri Lanka. 20 The Tribunal referred to the United Nations High Commissioner for Refugees Handbook and the statement by Black CJ in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 443 where it was said "If it is not reasonable in the circumstances to expect a person who has a well-founded fear of persecution in relation to the part of the country from which he or she has fled to relocate to another part of the country of nationality it may be said that, in the relevant sense, the person's fear of persecution in relation to that country as a whole is well-founded." 21 The Tribunal referred to a February 1996 report of the Canadian High Commission which noted the fact that a large number of Tamils who had been granted Convention refugee status in Canada feel secure enough to visit Sri Lanka and also the view of Dr Bruce Matthews of Acadia University that " … an Internal Flight Alternative most certainly does exist in Colombo and other locations in the south … and that … Tamils are physically safe in Colombo" and that he "would not consider the Sri Lankan capital to be particularly dangerous for the usual refugee who is able to put up with some unwanted [sic, presumably unwonted] humiliation and relatively minor annoyance." The Tribunal noted that it needed to take into account the train bombing of 24 July 1996 which would "undoubtedly precipitate an escalation in security measures in Colombo". 22 The Tribunal accepted the applicant had spent approximately three years in LTTE controlled areas and had taken this into account considering whether there was a real chance that he would be perceived by the security forces as an LTTE sympathizer in Colombo. It referred to the document purporting to come from the Police Station in Kotahena and evidence as to the document by the Document Examination Unit (an independent office within the Department of Immigration and Multicultural Affairs) and recorded a "positive state of disbelief" that the document was genuine. 23 Nevertheless the Tribunal accepted that, given the extent of security measures in Colombo generally, there was more than a remote possibility the applicant had been questioned and detained overnight by the security officers. This would be consistent with generally known information on the security situation in Sri Lanka. The Tribunal referred further to a DFAT cable to the effect that the vast majority of Tamils taken are only held for a couple of days and then only so long as it takes for identification and bona fides to be established. The Tribunal then said: "The Tribunal notes his evidence that he was arrested and detained for one night in June 1994 and has considered whether there is a real chance that he would again be detained and mistreated by the security forces if he returned. The Tribunal notes that the applicant claims to have been fearful of the police after his arrest and yet he went back to the police station and asked for a letter confirming that he had been arrested. The Tribunal does not accept that anyone who was genuinely fearful of the police would return to the police station and request a document verifying that he had been arrested and released. Further having regard to the report from the Document Examination Unit, the Tribunal does not accept that the Colombo police at the local Kotahena station would produce such a document in English on unheaded paper to oblige a Tamil detained on suspicion of being an LTTE supporter. Having regard to Foster J's caution in Guo's Case, the Tribunal has a positive state of disbelief that this document is genuine." 24 The Tribunal noted that the applicant advanced two factors which had emerged since mid 1994, namely that he now had a police record and had used a false passport to leave the country. The Tribunal said: "In relation to the issue of the passport, the Tribunal finds that if he is charged for using a false passport, this will be prosecution for breaching the local laws of Sri Lanka and not persecution on the grounds of political opinion or race. In relation to his police record, the Tribunal notes that the applicant claims that he was released one day after his arrest and that he was not re-arrested in the following six months that he travelled back and forth to Colombo. Given his quick release, the Tribunal finds that he was not a prime suspect. Having regard to his profile of an older businessman with an Identification Card indicating that he comes from the Colombo area of Sri Lanka, the Tribunal finds that this single minor incident with the police does not pose more than a remote possibility that the applicant would be at risk of arrest or mistreatment by the security forces. The Tribunal has also considered whether the combination of factors including his false passport, his arrest in June 1994 and his Tamil ethnicity could pose a real chance of persecution for imputed political opinion. Having regard to his personal profile as on older businessman with an ID showing his origins in the Colombo area, his ability to speak Singhalese and his business connections in Colombo, the Tribunal finds that there is not a real chance of persecution by the security forces for a Convention reason, even if all the above claims are assessed cumulatively. In relation to his claim that he is at risk from the LTTE in Colombo, the Tribunal, accepts that the LTTE poses a serious threat to all residents in Colombo through its arbitrary and indiscriminate attacks on civilians. However the Tribunal does not accept that the applicant would be individually targeted by the LTTE. The Tribunal finds that in the past the LTTE has not entertained serious suspicions about the applicant and that there is not a real chance that it would utilise its resources to pursue him in Colombo. As he will not be at risk in Colombo, he speaks Singhalese and he has business connections there, the Tribunal finds that it is reasonable for the applicant to relocate in Colombo." Argument on review 25 Counsel argued that in respect of two issues there was a failure by the Tribunal to set out findings on material questions of fact and refer to the evidence on which those findings were based; s 430(1)(c) and (d): Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845. There was also a failure in respect of the same issues to consider and determine the substantive issues raised by the material and evidence before the Tribunal: Paramanthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 62-64. 26 The first issue was said to be the applicant's fear of persecution in Colombo by reason only of the fact that he was a Tamil. 27 Of course, as counsel pointed out, once the Tribunal accepted that there was a real chance of persecution at the hands of the LTTE if he returned to his home, the question was not whether there was a real chance of persecution on a Convention ground in Colombo but whether it was reasonable in all the circumstances for him to relocate to Colombo. It is clear that the Tribunal appreciated this distinction and applied the correct approach. 28 The short answer is that the initial claim made by the applicant, and his application for review by the Tribunal, did not base his fear (whether as to persecution for a Convention reason or as going to the reasonableness of relocation) on Tamil ethnicity in and by itself. In the passage already quoted in his affidavit, the applicant claims that he was arrested on the suspicion that he was a Tamil Tiger and that Sri Lankan Government forces do not allow "a Tamil from the north" to live in peace. In his application for review by the Tribunal the applicant stated, inter alia: "The department has not considered the fact that there is real chance of persecution. The department failed to understand the fact that as a Tamil it is impossible to live peacefully in Colombo or any other area controlled by the Sri Lankan Government, after you are taken once for questioning by the police. All the Tamils with connection to LTTE are charged and jailed without any question asked." (Emphasis added). The Tribunal had to consider the actual case presented by the applicant, not some theoretical alternative case. 29 In any case, the greater includes the less. The Tribunal dealt with the applicant's case on the basis, as he asserted, that he was a Tamil who had been once arrested and who had come from the north. The Tribunal's assessment was that such a person faced "more than a remote possibility" of being questioned or detained. In other words, the applicant presented not only as a Tamil, but a Tamil affected by two additional adverse circumstances. If the Tribunal found, as a fact, that it would be reasonable for such a person to relocate to Colombo, so much the more would it be reasonable for a Tamil who did not labour under such additional disadvantages. 30 The second issue was said to be the failure of the Tribunal to make findings on the broader question whether it would be reasonable in all the circumstances for the applicant to relocate. 31 The claim the applicant made as to reasonableness of relocation in Colombo was entirely concerned with his fear of apprehension. The Tribunal did not err in dealing with the case the applicant advanced. It was not obliged, as counsel suggested to explore matters which were not raised, such as the applicant's relationship with relatives who were in the area. 32 The application for writs of prohibition, certiorari, and mandamus and injunctions, insofar as it is based on the grounds in par 3 of the Order of Hayne J in the High Court of Australia on 23 November 1999, is dismissed. There will be an order that the applicant pay the respondent's costs to be taxed, including reserved costs. I certify that the preceding thirty two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: Counsel for the Applicant: Mr A Krohn Solicitor for the Applicant: Ravi James Solicitors Counsel for the Respondent: Mr W Moseley Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 25 September 2000 Date of Judgment: 10 October 2000