VAAU of 2001 v Minister for Immigration and Multicultural Affairs [2003] FCA 15

FEDERAL COURT OF AUSTRALIA

VAAU of 2001 v Minister for Immigration and Multicultural Affairs [2003] FCA 15

MIGRATION – application for protection visa – judicial review – whether Tribunal failed to consider the claim in the "total factual context" – whether Tribunal took into account irrelevant considerations and erred in law in not finding that the relevant conduct constituted "persecution"

Migration Act 1958 (Cth) s 474 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 – cited VAAU OF 2001 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V 1321 of 2001 FINKELSTEIN J 21 JANUARY 2003 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V1312 of 2001

BETWEEN: APPLICANT VAAU OF 2001

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: FINKELSTEIN J

DATE OF ORDER: 21 JANUARY 2003

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent's costs of the application.

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 V1312 of 2001

BETWEEN: APPLICANT VAAU OF 2001

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: FINKELSTEIN J

DATE: 21 JANUARY 2003

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The applicant is a Tamil from Sri Lanka. He seeks asylum in Australia on the basis that he has a well founded fear of persecution if he were required to return to Sri Lanka. His application for a protection visa on that account was refused by a delegate of the Minister, and the delegate's decision was affirmed by the Refugee Review Tribunal (the "Tribunal"). The applicant now seeks to review the Tribunal's decision, alleging errors of law of a kind that are justiciable in spite of the "no certiorari" provision in s 474 of the Migration Act 1958 (Cth). 2 A civil war has been waged in Sri Lanka between indigenous Tamils and the Singhalese since the 1970s. It has caused the death of tens of thousands of the country's citizens. The Liberation Tigers of Tamil Eelam (usually abbreviated as Tigers) who seek to establish an independent state in the northern part of the island have been responsible for many acts of terrorism against both government forces and the civilian population. In turn this has resulted in severe human rights abuses of Tamils, including arbitrary arrest, torture and killings, at the hands of the government. 3 According to the case which the applicant put to the Tribunal, he and his family were caught up in the civil war when the applicant was only three years old. The applicant's family home was burnt down during riots in 1977. The family was displaced and after a time moved to Kokkaddicholai in the eastern part of Sri Lanka. There the applicant went to school and found employment. In 1990 the family home in Kokkaddicholai was destroyed by the army and the applicant suffered minor injuries. He and his family were forced to live in a refugee camp between 1990 and 1993 while many of his relatives fled to India as refugees. In 1994 the applicant was detained by the Sri Lankan Army and accused of being connected with one of the Tamil Tigers' leaders partly because of a shared name. The applicant said he was beaten by soldiers who attempted to extract information from him about the Tigers but he was ultimately released through the efforts of his parents, by them establishing he was a student and by their payment of a bribe. In September 1995 the applicant obtained work as a trainee motor mechanic in a garage in Batticaloa. The foreman was a Tamil named Kumar. In March 1998 a minibus carrying a concealed bomb exploded in Colombo city killing many people. The minibus was traced to Batticaloa. The police arrested Kumar as a key suspect. Kumar was killed by the police during an attempt to escape from custody. After the police had visited the applicant's house in Batticaloa, the applicant, fearing his own, or his father's arrest, surrendered to the police on 16 April 1998. He was interrogated, beaten, ill treated and accused of being connected with the Tigers. Nevertheless the applicant was released on the understanding that he would return to Kokkaddicholai and provide the army and police with information about the Tigers' activities. On his return the applicant decided it would be dangerous for him to provide the assistance he had promised, so his father arranged for the applicant to travel to Singapore to undertake further studies. From Singapore the applicant made his way to Australia and in due course submitted his application for a protection visa. 4 The events which occurred in Sri Lanka when the applicant was a young boy can be put to one side. As regards later events the Tribunal made findings which to some extent were in accordance with the applicant's evidence. In particular, the Tribunal accepted that the applicant had been detained and interrogated by the army in 1994. It said that "[i]t is plausible that he was teased about sharing a name with the leader of the LTTE and was roughly treated, but he was released after two weeks when it was proved he was a student and he resumed his education." I interpolate to indicate that by this finding the Tribunal appears not to have accepted that the applicant had been beaten to the extent alleged. It seems also not to have accepted that he was released upon the payment of a bribe. In relation to the events arising out of the minibus bombing, it is clear that the Tribunal doubted the applicant's account of events. Nevertheless, the Tribunal said that despite those doubts: "the Tribunal proceeds on the basis that the Applicant did work in a garage that was suspected of some connection with the explosion in Colombo. [The applicant's] own evidence is that he turned himself in to the police and was questioned." But the Tribunal went on to say that: "[t]he fact that he was released on the same day and was told that there would be no record of his arrest or detention leads the Tribunal to conclude that the authorities explored their suspicions and released him because that [sic] had no ongoing interest in him." 5 The Tribunal's general impression of the applicant's claim appears from the following two paragraphs in its reasons: "In considering the Applicant's claims about his experiences in Sri Lanka, the Tribunal concludes that he was of no interest to Sri Lankan authorities when he left, nor was he at risk of being harmed by the LTTE. There had been ample opportunity for those he feared to intercept him, yet that had not happened. It finds that he did not have any well-founded fears of persecution when he left his country of nationality, keeping in mind that it is required to ultimately assess whether or not he has a real chance of being persecuted in the future. … The Applicant claims he was detained and released in 1994 and that he voluntarily presented himself to police in 1998, in the wake of the mini-bus explosion. He was released both times, as discussed above. His history suggests that he is not at any significant risk of being arrested and persecuted and, if he is detained for questioning because he is a Tamil who might be suspected of a connection with the LTTE, there is no more than a remote chance that he would not be able to satisfy the authorities that he has no links with the LTTE. He has a history of working and residence in Batticaloa, a network of friends and relatives and relevant identity documents that provide further explanation for his presence in that area. The Tribunal concludes there is not a real chance he faces persecution in the place where he most recently lived and worked should he return to his country of nationality." 6 The first complaint directed to the Tribunal's decision is that it failed to consider the applicant's claim in the "total factual context". That context was said to include the "fact" that the Sri Lankan government had the intention of driving its Tamil minority from their homes, denying their aspirations for self determination and subjecting them to acts of extra judicial execution and forced disappearance. According to the applicant's counsel: "What this Tribunal has done is it has ignored the possibility of persecution during the period of detention, even if that detention is concluded by the authorities saying, 'We don't want you. Get out. Go Away.' and that is properly put as either a failure to take account of a relevant matter or relevant consideration … it demonstrates that this Tribunal has not understood that persecution for a convention reason can be made out in the course of brief detention and interrogation and mistreatment followed by release." 7 For the applicant to succeed in demonstrating that he is a refugee as defined by the Refugees Convention (Convention relating to the Status of Refugees 1951, as amended by the Protocol Relating to the Status of Refugees 1967) it was necessary for him to persuade the Tribunal that he had a subjective fear of persecution if required to return to Sri Lanka and that there was an objective justification or foundation for that fear. As the cases show, a fear of persecution will be well founded only if there is a "real chance" of persecution if the putative refugee returns to his country of nationality. In this regard past events will often be a useful guide as to what may occur in the future. 8 In its reasons the Tribunal made it clear that it understood the task at hand. Moreover its reasons show that the Tribunal understood the nature of the mistreatment to which the Tamil minority is subjected by the government. On the other hand, the evidence that was before the Tribunal, some of which is referred to in its reasons, also indicates that while many Tamils are often arrested for no reason, they are usually released within a short period, especially if there is nothing to link them to the activities of the Tigers. In this way the Tribunal both had before it, and made reference to, the "total factual context". It was this "context" which led the Tribunal to the conclusion, not an unreasonable conclusion in light of the evidence, that unless a Tamil was suspected of having a connection with the Tigers he would not be at a real risk of persecution. Put another way, it was not sufficient for the applicant to establish simply that he was a Tamil. He had to go further and show that he was personally at risk of persecution for one or other Convention reason. 9 The Tribunal did look at the personal situation of the applicant. Although the applicant had come in contact with the authorities on two occasions, once in 1994 and later in 1998, the Tribunal's findings imply that he was not subjected to any persecutory treatment on those occasions. Hence it was open for the Tribunal to conclude, as it did, that the applicant's history suggested "that he is not at any significant risk of being arrested and persecuted and, if he is detained for questioning…there is no more than a remote chance that he would not be able to satisfy the authorities that he has no links with the LTTE". Indeed in virtue of its findings this may have been the only conclusion that was open to the Tribunal. 10 The applicant also complains that the Tribunal took irrelevant matters into account in reaching its decision. One of the matters to which the Tribunal had regard in arriving at the conclusion that the applicant was not of interest to the Sri Lankan authorities was the ease with which the applicant was able to leave Sri Lanka. The Tribunal said that with the Sri Lankan authorities' massive resources directed at suppressing the LTTE, it "makes no sense that they would facilitate the departure of a person they thought to be involved with the terrorist attacks perpetrated by members of that organisation, even if there are some corrupt officials [who might by bribe allow the applicant to leave]." This was said to be an irrelevant factor which was wrongly taken into account. 11 I reject the view that in considering the risk of future persecution it was impermissible for the Tribunal to have regard to the freedom of movement accorded to the applicant by the Sri Lankan authorities. There are many instances of persons who are the subject of persecution by a government that also are severely restricted in their ability to move within a country, or restricted in their ability to leave that country. Conversely there are examples of cases where the ability to move freely from place to place may say very little about the likelihood of future persecution. In each case it is for the Tribunal to decide what it makes of this type of evidence. In the instant case the Tribunal regarded as relevant the evidence about freedom of movement. It committed no error in taking that view, even if a different decision-maker might have formed a different view. 12 Next there was an attempt to show that the Tribunal erred in law when it failed to find that the treatment accorded to the applicant constituted "persecution" for the purposes of the definition of "refugee" in the Convention. I reject this submission. First, it seems to proceed on the unwarranted assumption that the Tribunal had accepted the applicant's account of events when that is not what the Tribunal did. Second, whether or not particular conduct is persecutory is often a matter of degree which, on review, is for the Tribunal to judge. Speaking generally, therefore, there would be no error of law in the Tribunal's finding on such a question, unless its finding was patently unreasonable in view of the facts as found. This is not one of those cases. 13 Finally the applicant alleged that there was error in that the Tribunal did not question whether the applicant, having suffered persecution in the past, was at risk of suffering like persecution in the future. However, in light of my finding that the Tribunal did not accept that the applicant had suffered persecution, not addressing the question of whether or not it was likely to recur cannot amount to an error. 14 Accordingly, I am of the opinion that there are no reviewable errors in the Tribunal's reasons. Even if there were, there is a complete answer to the applicant's case. In its reasons the Tribunal said that it was satisfied that the applicant could relocate to another part of Sri Lanka where the likelihood that he would be persecuted for a Convention reason is insubstantial. In that regard the Tribunal applied the so called "relocation principle" as discussed in cases such as Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437. Although this finding was also challenged on the basis that the Tribunal misunderstood the meaning of persecution when considering the "relocation principal", there is nothing which indicates such an error. 15 In virtue of my finding that the Tribunal had not in any respect erred in law, it has been unnecessary for me to discuss the effect of s 474 of the Migration Act 1958 (Cth), an issue which occupied a substantial amount of time at the hearing of this matter. 16 The application will be dismissed with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.