Nadarajah v Minister for Immigration & Multicultural Affairs [2002] FCA 368

the applicant's claims and the Tribunal's decision 2 The applicant was born in Colombo in 1965. When he was five years old, his family moved from Colombo to Point Pedro on the Jaffna Peninsula. In 1989 he was detained by the army, which had a camp near his house. The applicant and a few others were singled out, questioned and beaten. He escaped and was not recaptured. 3 In 1991, on the death of his father, the applicant went to Negombo for the funeral. Negombo is a town approximately 30 kms north along the coast from Colombo. In Negombo he met and married his wife with whom he returned to Point Pedro. His wife is a member of a small ethnic group which settled in Sri Lanka from India some 400 years ago. She does not speak Tamil and was educated in Sinhalese. She had problems in Point Pedro from members of the Liberation Tigers of Tamil Elaam ("LTTE"). The LTTE suspected that the applicant's wife was a spy and took her in for questioning three times. Each time she was released after the applicant interceded on her behalf. The applicant's wife became afraid of living in Point Pedro and they moved back to Negombo in February 1991. One part of the applicant's claims for refugee status was based on the incidents in Point Pedro before February 1991. The Tribunal rejected those claims and they are not the subject of this application for review. 4 The main part of the applicant's claim to refugee status was the fact that he had been arrested on five occasions. The Tribunal accepted the applicant's evidence as credible. 5 The first occasion was in 1993. The applicant was arrested by police because three days earlier he had moved house, but had not registered his new address. The police held him for two or three days, then his wife paid a bribe to the police and he was released without charge. The applicant stated that it was common for police to arrest Tamils for the purpose of extorting money from them for release. The applicant agreed with the Tribunal that if the police had genuinely suspected him of LTTE involvement, they would not have released him. 6 The second arrest was in 1995 for living at a residence at which he was not registered. The applicant also stated that the police suspected him of involvement with the LTTE because he owned a security business and the police considered that he could provide LTTE cadres with accommodation or even employment. The applicant stated that the police informed the Ministry of Defence about his arrest and his security business. The Ministry of Defence had then cancelled his licence to operate a security business. 7 The third arrest was in 1997, again because of problems with the applicant's residency registration. On this occasion, the applicant's brother was registered as living in the applicant's house, but when the army came to his house in the evening for a security check, his brother was not at home because he worked on the night shift at a distant factory and had not returned home from work. The army took the applicant into custody and held him for four days, during which time he was beaten. Once again, he was released after his wife paid a bribe to the police. The applicant was bedridden for one month after his release. 8 The fourth arrest occurred in September 1999. On that occasion, the applicant was in the process of moving from one house to the other (and was paying rent for both houses), but had not registered his move to the second house. He was detained for two days and released after paying a bribe. 9 The fifth arrest was in January 2000. The applicant was returning to Negombo from Colombo and was stopped at an army road block for a security check. He was detained at 11.00am and released, after paying a bribe, in the evening of the same day. His business partner arranged for the payment of the bribe. 10 The applicant told the Tribunal that all the Sri Lankan police wanted to do was to beat him and extort money from him. They never filed a case against him because they were, so the applicant intended, well aware that they had no evidence. 11 The Tribunal asked the applicant why he did not seek recourse against the actions of the corrupt police. He replied that, as a Tamil, he could not take any steps because he had no political influence and because he was afraid that he would suffer retribution. The Tribunal put to the applicant some independent evidence about the policy of the Sri Lankan government towards harassment of Tamils and corruption by security forces and the avenues for redress of such harassment and corruption. The applicant agreed that he had seen reports in the newspapers about such actions but said that he did not have the power or energy to mount such a case and that he feared for his life if he did so. 12 The applicant also relied upon the fact that he had given information to the Australian Federal Police about the owner of the boat on which he had travelled to Australia. The owner of the boat had also travelled on it with the applicant and others. The applicant said that the owner of the boat was a politician in Sri Lanka with powerful connections to the Sri Lankan government. The owner had made threats against the families of those on the boat if they said anything adverse to the police. The boat owner had taken his National Identity Card. One of the people who had travelled on the boat had been returned to Sri Lanka and had told the agent who had arranged the applicant's travel that the applicant had spoken to the police about the boat owner. The agent had gone to the applicant's house and forced his wife to pay the applicant's passage money. The applicant explained that although he had raised 350,000 rupees for the trip, he had not given it to the agent because he was supposed to pay the agent only when he landed in Australia. 13 Finally, the applicant claimed that he would prosecuted in Sri Lanka for his illegal departure from that country. His photograph had been taken for a newspaper article which described his arrival in Australia, which had been published in a newspaper in Sri Lanka. His wife had cut the article out of the newspaper and kept it. The police had questioned her about the photograph when they had gone to the house after the detention of one of his brothers. 14 At the conclusion of the hearing before the Tribunal the applicant's adviser sought, and was granted, the opportunity of making further written submissions to it. In those written submissions the applicant's adviser dealt with information concerning the situation in Sri Lanka for Tamils, particularly in relation to arrest, detention, mistreatment or torture by police officers and the effectiveness of steps taken by the Sri Lankan government to provide protection against and redress for such instances of mistreatment. The submissions also dealt with the likelihood of the applicant experiencing mistreatment if he were to return to Sri Lanka particularly as his illegal departure would become known on his return. 15 The Tribunal referred to the political history and the current situation in Sri Lanka. It also referred to and reviewed numerous sources of independent country information published during the period 1995 to 2001 on the treatment of Tamils in Sri Lanka, bribery and extortion in that country, and the likely consequences upon return to Sri Lanka for those who had departed illegally. 16 It then set out its understanding of the legal principles applicable when determining whether an applicant is a person to whom Australia has protection obligations under the Refugees Convention. No complaint was made by the applicant about the correctness of the Tribunal's legal analysis at this stage of its reasoning. 17 I shall not attempt to summarise the Tribunal's findings and reasons. I set them out below: "FINDINGS AND REASONS 56. I am satisfied that the applicant is a national of Sri Lanka, which is therefore the country of reference for this matter. 57. The applicant's claims can be broadly categorised into claims of persecution by the security and police authorities of Sri Lanka, and persecution by the LTTE. Persecution by LTTE - findings 58. I do not propose to consider whether the applicant's claims of harassment by the LTTE on the basis of an alleged suspicion about his Sinhalese-speaking wife constitute persecution within the meaning of the Convention. The applicant has not resided in LTTE-controlled areas since moving to Negombo in February 1991. For the reasons which follow, I do not consider that the applicant has a well-founded fear of persecution by the Sri Lankan authorities and accordingly there would be no need for the applicant to relocate to LTTE-controlled territory to avoid such persecution. I find that the chance that the applicant would be persecuted for a Convention reason by the LTTE in the reasonably foreseeable future is remote. Persecution by Sri Lankan security forces – findings army detention and mistreatment, point pedro, 1989 59. For the same reason, that is, that there is no reason for the applicant to return to areas of conflict and, therefore, to come to the attention of the army in Point Pedro, I consider the chance that the applicant would again be detained or mistreated as he claims happened in 1989 to be remote. I am fortified in this view by the fact that the applicant did not experience any repetition of such mistreatment for the remainder of the time that he lived in Point Pedro before moving to Negombo. arrests in negombo, 1993, 1995, 1997 and 1999 60. Each of the episodes of arrest on which the applicant relies to support his claim to refugee status, with the exception of the 2000 incident for which I have made separate findings, share a number of common features and accordingly I make findings which are equally applicable to each episode. 61. Those features are: That the initial interest of the authorities was triggered by the applicant's failure to comply with some aspect of the mandatory residence registration scheme which operates in Sri Lanka and which binds all citizens, not just Tamils, that the applicant's release on each occasion was effected by the payment of bribes to the police; and that the applicant made no attempt to invoke the protection of the State which was available to him. 62. The applicant agreed at the hearing that the police did not genuinely suspect him of support for the LTTE, that all the police wanted to do is to beat him and extort money from him. This conclusion is supported by the fact that the police never charged the applicant, even though he was apparently in breach of the registration requirements, and that the applicant was in fact released each time after the payment of a bribe. I am satisfied that these episodes of detention and mistreatment were not for a Convention reason, whether imputed political opinion or race or any other ground, but rather were criminal acts on the part of corrupt police and motivated by greed. 63. In particular, I am not satisfied that the applicant's race was in any way a cause of these episodes. Although it may be that Tamils are more often targeted for police attention, because the LTTE insurrection is Tamil-based, each of the episodes involving the applicant were triggered by his own failure to comply with the registration requirements. He was not, in any of these four instances, chosen as a target of criminal extortion because he is Tamil. He was an available target for criminal extortion by the police because his failures to comply with the law had put him in police custody. This is not to suggest that the mistreatment experienced by the applicant could be described as "prosecution" rather than persecution, in the sense that the police acted this way in response to the applicant's illegal activities. I have already concluded that the police actions, after they had taken the applicant into custody, were criminal. Rather, my finding is that the initial reason for the applicant coming to the attention of the police was not Convention-related, it was solely due to the applicant's failure to comply with registration requirements. 64. There is a further basis for my finding that these four episodes are not Convention-related persecution. I am not satisfied that any of these episodes demonstrates a failure of State protection. Significant to this finding is the applicant's evidence that he never made a complaint about, or sought redress for, the criminal acts of the police. The applicant stated that he was aware of the avenues of redress available to him, and that the police never charged him in relation to a suspicion of LTTE support because they knew there was no evidence and they would not be able to win such a case. His explanation for failing to seek the protection of the State was that he did not have the energy or the political connections to mount such a case and that he feared retribution if he did. 65. I have considered the independent information set out earlier in this decision concerning the avenues of State protection available in Sri Lanka. I have also considered the submissions made by the applicant's adviser, and the sources cited in those submissions, concerning the effectiveness of those avenues of redress. Some of the sources cited by the adviser are relatively dated and a more [sic, presumably "recent"] report indicates that the Sri Lankan government has made "some impressive gains" in respect of human rights in recent years. Further, many of the criticisms made in the cited material are directed at abuses which occur in areas directly involved in the civil conflict, which does not apply to the applicant. 66. The applicable legal principle, as set out above, is that the protection which a State must provide in order for it to be "effective" need not amount to an absolute guarantee of safety from harm, and that there cannot be a failure of State protection where a government has not been given the opportunity to respond to a form of harm in circumstances where protection might reasonably have been forthcoming. 67. Accordingly, even if the harm experienced by the applicant was Convention-related, I am not satisfied that there has been a failure of State protection reasonably available to the applicant in this matter arrest (army roadblock), negombo, 2000 68. In relation to the incident where the applicant was detained at an army roadblock in January 2000, I repeat my findings above that the payment of a bribe for his release does not show a Convention nexus, nor that there can be said to have been a failure of State protection. 69. I also note that the applicant was detained for a relatively short period of time, less than a day, and was released unharmed. Although this was no doubt distressing to the applicant, and could reasonably be perceived as harassment, nevertheless I am not satisfied that the harm suffered, being brief detention and the payment of a bribe, is serious enough to amount to persecution within the meaning of the Convention. 70. Finally, the brief detention at an army roadblock appears to constitute a legitimate security measure in the context of the vicious civil conflict which has persisted in Sri Lanka for so many years and which frequently involves LTTE terrorist bombings in places outside the areas of conflict, including Negombo. 71. I am not satisfied that the applicant's brief detention and the payment of a bribe demonstrates a failure of State protection nor that it is Convention-related, nor that the level of harm suffered amounts to persecution. illegal departure and failed asylum application 72. I am not satisfied that the applicant's fear of persecution for his illegal departure is well-founded. I do not accept that the applicant's return to Sri Lanka would necessarily alert the authorities to his illegal departure, given that he is able to obtain a lassez-passer on which to re-enter Sri Lanka, in which case the lack of an exit stamp in his passport would not require explanation. I have also examined the photograph printed in some newspapers, including Sri Lankan newspapers, which the applicant says depicts him as one of the people rescued from the bush in north-west Western Australia. I do not accept that the applicant could be identified from that picture on his return to Sri Lanka. 73. I do accept that the applicant's wife clipped from the newspaper reports of the applicant's arrival in Australia and that the police have confiscated those clippings from her. However, this raises the other issue in relation to the applicant's illegal departure for Sri Lanka, which is that the applicant has breached Sri Lankan law in making an illegal departure. Should the applicant be questioned in relation to his illegal departure, any prosecution pursuant to a law of general application does not constitute persecution for a Convention reason. 74. There is no evidence before me that the Sri Lankan authorities impute to persons who depart illegally from Sri Lanka or who unsuccessfully apply for asylum overseas a political opinion in support of the LTTE. The accounts of mistreatment of returnees which the applicant's adviser has put forward concern the difficulties faced by returnees who have no entitlement to remain in Colombo, because their residence is registered in other areas, generally the north and east, of Sri Lanka and whose identity documents are confiscated, which renders them vulnerable to repeated arrest for failing to be able to produce proof of identity. Such persons frequently fit, to a greater or lesser degree, the "profile" of Tamils suspected of support of the LTTE, relevantly here, born and previously resident in LTTE- or former LTTE-controlled areas, previously arrested on suspicion of LTTE support, and unable to speak Sinhalese. The applicant is not in this position as he has a valid passport with which to verify his identity and to obtain another NIC, and in any event his place of residence is Negombo, not the north or the east. The applicant does not possess the "profile" of Tamils suspected of LTTE support which might otherwise render him vulnerable to police attention. That is, the applicant does not come from LTTE-controlled areas, he has family in the Negombo, he has not previously been arrested on suspicion of support of the LTTE (as I have found above, and as the applicant agreed at the hearing), and he speaks Sinhalese. 75. I am not satisfied that the applicant has a well-founded fear of persecution for a Convention reason by reason of having left Sri Lanka illegally or for having applied for asylum overseas. information to australian federal police re boat owner 76. I do not accept that any harm which the applicant may experience as a result of having given information to the Australia Federal Police in relation to the owner of the boat which illegally brought him to Australia would be for a Convention reason. I am satisfied that any such harm would be purely retributive and personal. In any event, I am satisfied for the reasons previously given that the applicant has available to him avenues of State protection against any such harm. CONCLUSION 77. Having considered the evidence as a whole, I am not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa."