Muthusamy v Minister for Immigration & Multicultural Affairs [2001] FCA 1433

FEDERAL COURT OF AUSTRALIA

Muthusamy v Minister for Immigration & Multicultural Affairs [2001] FCA 1433 PRADEEP YASANTH MUTHUSAMY v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 999 OF 2001 EMMETT J 6 SEPTEMBER 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 999 OF 2001

BETWEEN: PRADEEP YASANTH MUTHUSAMY

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 6 SEPTEMBER 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the proceeding. 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 999 OF 2001

BETWEEN: PRADEEP YASANTH MUTHUSAMY

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE: 6 SEPTEMBER 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant is a national of Sri Lanka. He arrived in Australia on 2 March 1996 on a student visa that was valid until 4 January 2000. He lodged an application for a protection visa on 4 October 1996. On 23 February 1998 the application was rejected by a delegate of the respondent, the Minister for Immigration and Multicultural Affairs ("the Minister"). The applicant requested the Refugee Review Tribunal ("the Tribunal") to review that decision. That decision was confirmed on 26 June 2000. The applicant applied to the Court for judicial review of that decision and the decision was remitted to the Tribunal by consent on 19 October 2000. Subsequently the Tribunal differently constituted affirmed the decision of the delegate on 23 May 2001. The applicant now seeks an order of review of that decision. 2 The applicant was on born on 22 June 1971 at Hatton in the Sri Lankan hill country. He is an ethnic Tamil. He attended local schools until the time of the ethnic riots in 1983, when Tamils were terrorised by Singhalese thugs. During that time he and his young Tamil friend were abducted on their way home from school by three thugs and a uniformed police officer. The allegation is that they were taken to a dam where the applicant was raped and his friend murdered for resisting rape. The applicant was threatened with his own death and that of his family should he tell anybody. Subsequently the applicant was sent by his father with his mother and two siblings to Madras in south India where they stayed for five years. 3 Life was peaceful in Madras until the Liberation Tigers of Tamil Eelam ("LTTE") started attempting to recruit Sri Lankan Tamils. The applicant claimed that he was abducted by the LTTE on several occasions and taken to training camps and released after payment of bribes by his mother. The family returned to Sri Lanka in January 1989 and resided in Colombo. The applicant claimed that while he was there he was arrested and interrogated often. He claimed that bribes were paid for his release. 4 The applicant returned to India where he claimed to have been abducted once more by the LTTE. He said that on that occasion he was forced to assist the LTTE by transferring wounded cadre to Jaffna. He said that he was returned to Madras after about a day. Following the assassination of the Indian prime minister, Rajiv Ghandi, by an LTTE suicide bomber in May 1991, the Indian government refused to extend the applicant's visa. However, he was permitted to stay in India until his existing visa expired in early 1992. 5 The applicant then returned to Colombo where once more he lived with his mother and siblings in Dehiwala. He claimed that he was arrested on numerous occasions and his mother paid bribes for his release. He claimed that the police arrested young Tamils like himself for the purpose of extorting money from them. Prompted by those incidents, the applicant attempted to leave Sri Lanka, securing a student visa to the United States. He claimed that he did not travel to the United States because the course in which he had enrolled had already started. He said that he spoke to a representative of the University of Kentucky, who told him that he could apply for enrolment for the following semester. 6 The applicant contacted the Australian Centre for Education. He obtained a student visa to Australia and arrived, as I have indicated, on 2 March 1996. The applicant claimed that he feared the following: (a) the Sri Lankan security forces, because he is a Tamil and as such, is suspected of assisting the LTTE in Sri Lanka; (b) the Sri Lankan security forces, for reason of his having lived in India, where training of LTTE cadres is known to have occurred; (c) the Sri Lankan security forces, because they have previously arrested him for the purpose of extorting money; (d) the Sri Lankan security forces, because his brother-in-law was involved with the LTTE; (e) abduction and extortion at the hands of the LTTE; (f) extortion at the hands of the Sri Lankan security forces; (g) extortion at the hands of pro government Tamil groups; and (h) harm at the hands of the Janata Vimukthi Peramuna, a far left-wing Singhalese-based revolutionary organisation, which attempted to overthrow the government in 1971. 7 The Tribunal considered that much of the applicant's evidence was "simply implausible". The applicant claimed that when he was in India between 1983 and early 1989 and again between October 1989 and early January 1992, he was repeatedly abducted by the LTTE. He claimed that he was taken to the LTTE training camps in Nagapatanam and Vedaranniyam in Tamil Nadu. He claimed that on one occasion in April 1991 he was taken by speed boat to Jaffna. He claimed that on each occasion the LTTE not only allowed him to go but returned him to his home in Madras. The Tribunal did not accept that the applicant would have been repeatedly taken by the LTTE and released in that way. The Tribunal considered that that was implausible in the light of the evidence with regard to the LTTE's practices in relation to forced recruitment. 8 The applicant asserted that that was how it happened. He said that his mother had given the LTTE money. However the Tribunal considered that if the purpose of the LTTE had been to extort money from the applicant's mother, there would have been no reason for them repeatedly to abduct the applicant and take him to their training camps two or three times or to Jaffna, as he claimed happened. The Tribunal also considered that the applicant's account of the time it took to reach training camps in Jaffna was implausible. The Tribunal gave details of its conclusion in that regard. 9 The Tribunal reiterated that it considered that the applicant's entire account of his contact with the LTTE while he lived in Madras between 1983 and 1989, and again between October or November 1989 and early January 1992, was implausible. The Tribunal also considered it implausible that he would been arrested numerous times in Colombo between early 1989 and October or November 1989, and again after he returned to Sri Lanka in early 1992, as he claimed. 10 The Tribunal considered that the purpose of security checks in Colombo was to identify people who were unable to explain their presence in Colombo to the satisfaction of security personnel. The Tribunal considered that it was implausible that the applicant, whose national identify card would have shown that he was born in Hatton; that he was a permanent resident of Colombo and that he was working and studying at all relevant times in Colombo, would have been repeatedly arrested at check points or in round-ups in Colombo in 1989, and again after he returned to Sri Lanka in early January 1992, as he claimed. 11 The applicant also claimed that he had been arrested at his home in October 1989, because the police had come to know that he had come from India, and had suspected that he might have been connected with the LTTE. The applicant claimed that because he had come from India they had thought that he would have received training from the LTTE. He claimed that in 1994 he had again been arrested at his home and questioned about what he was studying and what he was going to do after he had finished his studies. He said that he also been asked whether he had had any further LTTE connection and whether he had been for LTTE training. 12 The applicant claimed that he had been arrested again on the night of the day of the Central Bank bombing in Colombo in January 1996. He said that he had been questioned about where he had been, what he had been doing when the bomb exploded, whether he knew anyone who had come from Jaffna recently, whether anyone from the LTTE had contacted him and whether he had any connection with the LTTE. 13 The Tribunal concluded that the applicant's entire account of his contact with the LTTE in India was implausible. It concluded that there was nothing in the independent evidence available to the Tribunal suggesting that the Sri Lankan authorities had singled out Tamils who had returned from India for arrest, detention or interrogation. The Tribunal did not consider that Tamils had been perceived by the Sri Lankan authorities as having had connections with the LTTE or as having undergone training with the LTTE, as the applicant claimed. The Tribunal considered that the applicant's account of his arrest in 1989, 1994 and 1996 was implausible. 14 The applicant had been granted a visa to travel to the United States to study at the University of Kentucky on 17 January 1996. However, the applicant did not use that visa to leave Sri Lanka and apply for refugee status in the United States, despite his claims that he feared being persecuted in Sri Lanka. 15 At the hearing before the Tribunal the applicant was asked why he had not travelled to the United States if his intention had been to seek refugee status there. The applicant suggested that he could have been asked for proof of admission to the university at the airport. Given that classes had started two weeks previously, the Tribunal accepted that the applicant would have had good reason not to travel to the United States if his intention was in fact to study at the University of Kentucky. However, the Tribunal did not accept that the applicant had a valid reason for not using the visa if his real intention was, as he claimed, to seek refugee status from persecution. The Tribunal considered that the applicant's failure to use his United States visa to leave the country cast doubt on his claimed fear of persecution in Ski Lanka. 16 Further, although the applicant came to Australia in March 1996, he did not apply for a protection visa until October 1996. The Tribunal suggested to the applicant at the hearing that the fact that he had delayed so long suggested that he had not in fact fled fearing persecution in Sri Lanka. The applicant's response was that he should have lodged the application immediately but he had not known whom to approach. He agreed with the Tribunal that the Department of Immigration would have been a good start. 17 The Tribunal considered that the failure to apply for a protection visa until over seven months after he had arrived in Australia cast doubt on the genuineness of the applicant's fear of persecution. The Tribunal suggested to the applicant that he in fact came to Australia to study at university and that he only decided to apply for a protection visa when another student suggested that course of action to him. 18 The Tribunal did not accept that the applicant genuinely holds a subjective fear of being persecuted if he returns to Sri Lanka. The Tribunal considered that the applicant's failure to utilise his United States visa to leave Sri Lanka and his failure to apply for a protection visa until over seven months after he had arrived in Australia indicated that he did not have such a subjective fear. 19 The Tribunal accepted that the applicant may have been abducted and raped as he had claimed by three thugs and a police officer in 1983. However, the Tribunal considered that there was nothing in the applicant's account of that incident to suggest that the police officer was acting in any official capacity. Nor did the Tribunal consider that the actions of the police officer were encouraged or condoned by the Sri Lankan authorities. The Tribunal did not consider that it could be concluded that the Sri Lankan authorities would not have taken action to punish the perpetrators had the matter been reported. 20 Notwithstanding the Tribunal's rejection of the greater part of the applicant's evidence with regard to his past experience, the Tribunal considered the question of whether or not any fear that the applicant had of being persecuted for Convention reasons if he returned to Sri Lanka now or in the reasonably foreseeable future was well founded. The Tribunal concluded that there was no reason why the applicant should be unable to find employment if he returns to Colombo, since his national identity card would show that he was born in Hatton and that he was a permanent resident of Colombo. 21 The Tribunal accepted that people in Colombo are stopped randomly at check points and in round-ups and are asked to show their national identity cards. It accepted that those with Tamil names are questioned. However, the information available to the Tribunal indicated to it that the purpose of the security checks in Colombo is to identify people who are unable to explain their presence in Colombo to the satisfaction of security personnel. The typical profile of persons who would fall under the scrutiny of the security forces in Colombo were young Tamils from the North or East. Further, the Tribunal concluded that there was nothing in the independent evidence available to it to suggest that the fact that a person had been to India would in any way influence the decision of the security forces to arrest that person. 22 The Tribunal considered that there was only a remote chance, not a real chance, that the applicant would be detained at check points or in round-ups by reason of his race if he returned to Ski Lanka now or in the reasonably foreseeable future. The Tribunal considered that the applicant would be able to satisfy the security forces that he had a legitimate reason for being in Colombo. 23 Since the Tribunal did not accept that there was real chance that the applicant would be detained for a Convention reason if he returned to Colombo, the Tribunal did not accept that there was a real chance that he would be tortured or otherwise persecuted while in detention, nor that money would be extorted from him in exchange for his release. The Tribunal referred to a submission made on behalf of the solicitor for the applicant that the applicant was at risk of race-based extortion as a Tamil. That submission relies on the applicant's evidence that every time he was arrested, his mother paid money for his release. As I have indicated, the Tribunal rejected the applicant's account of his arrests. 24 The Tribunal referred to material to which reference was made by the applicant's representative. That material included a 1994 report from Amnesty International that stated that Amnesty International had received a number of reports of police demanding money from detainees in return for their release. The report also referred to claims made in 1997 that people were being arrested and detained by the police for the sole reason of blackmailing their families into paying bribes to have them released. 25 The Tribunal said that with regard to the threat of the applicant being arrested and detained by the police for the purpose of blackmailing his family into paying bribes to have him released, the independent evidence indicated that such extortion by police officers was neither encouraged nor condoned by the Sri Lankan Government. The Tribunal considered that while the Sri Lankan Government condones legitimate security measures, that is, detaining Tamils in Colombo, there is nothing in the independent evidence available to the Tribunal to suggest that it encouraged or condoned police or criminal gangs engaging in extortion. 26 The Tribunal observed that, in considering whether the government of an applicant's country of nationality is powerless to protect an applicant from private persecution, the test is not whether the country of nationality is able to guarantee protection against persecution, but first, whether the government of the country of nationality will extend to the applicant the same degree of protection as that accorded to any of its other nationals and second, whether it will provide the applicant with a level of protection sufficient to remove a real chance of persecution in the country in question by the private group concerned. The Tribunal referred to the decision of the Full Court in Minister of Immigration and Multicultural Affairs v Prathapan (1998) 156 ALR 672 to 681. 27 The Tribunal did not accept, on the basis of the evidence before it, that the Sri Lankan Government would provide the applicant with any lesser degree of protection against extortion by police officers or criminal gangs than any other citizen of Sri Lanka. The Tribunal also considered that the applicant would be provided with a level of protection sufficient to remove a real chance of his being persecuted by reason of extortion following detention as a Tamil. The Tribunal was not satisfied that the applicant had a well founded fear of being persecuted for a Convention reason if he returned to Sri Lanka. 28 In his amended application to this Court, filed today without objection, the applicant relied on three grounds as follows: 1. The Tribunal erred in law, being an error in the interpretation of the law or in the application of the law to the facts as found. The Tribunal failed to address a substantial issue raised on the claims, evidence and material before it, being whether the applicant was targeted and detained by corrupt police officers in Sri Lanka for the purposes of extortion. 2. The decision maker did not have jurisdiction to make the decision. The Tribunal failed to consider the issue of whether the applicant was targeted and detained by corrupt police officers in Sri Lanka for the purpose of extortion. 3. There was no evidence or other material to justify the making of a decision. There was no evidence or other material to justify the Tribunal's finding that the applicant will be provided with a level of protection sufficient to remove a real chance of his being persecuted by corrupt police who would target him for extortion for reason of his race. The decision was based on the existence of particular fact, being that the applicant would be so protected and there was evidence before the Tribunal that he would not be so protected. 29 Grounds 1 and 2 are based on the same circumstances, namely, the asserted failure on the part of the Tribunal to address the claim made by the applicant and his legal representatives that there was a real risk that the applicant might be detained by corrupt police officers with a view to extorting money from his family. The claim was made by the applicant in a statement dated 10 March 1997.