FEDERAL COURT OF AUSTRALIA

MIGRATION - refugee - refusal of protection visa - whether Refugee Review Tribunal required to review those claims which it had accepted and “speculate”, in the sense of “predict” or “assess” as to likelihood of persecution in the future on the basis of those claims.

Migration Act 1958 (Cth) ss 430 (1) (c); 476 (1) (a), (e)

Welivita v Minister for Immigration & Ethnic Affairs, unreported, 18 November 1996, Lindgren J.

Wu v Minister for Immigration and Ethnic Affairs (1997) 72 FCR 524 (FC)

Eshetu v Minister for Immigration & Ethnic Affairs (1997) 71 FCR 300 (FC)

Coonghe v Minister for Immigration and Ethnic Affairs, unreported, 6 April 1998,

Finkelstein J.

SENTHILNATHAN THARMALINGAM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 966 of 1997

LINDGREN J

SYDNEY

19 MAY 1998

THE COURT ORDERS THAT:

1.         The decision of the Refugee Review Tribunal dated 23 October 1997 be set aside and the matter be remitted to the Tribunal for determination in accordance with law.

2.         The respondent pay the applicant’s costs.

Note:                Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

INTRODUCTION

The applicant (“Mr Tharmalingam”) applies for review of a decision of the Refugee Review Tribunal (“the RRT”) dated 23 October 1997 affirming a decision of a delegate of the respondent (“the Delegate” and “the Minister” respectively) not to grant him a protection visa. Subsection 36 (2) of the Migration Act 1958 provides that a criterion for the grant of a protection visa is that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the “Refugees’ Convention” as amended by the “Refugees’ Protocol”. These expressions are defined to mean, respectively, the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol Relating to the Status of Refugees done at New York on 31 January 1967. I will refer to them compendiously as “the Convention”. In order for Australia to have protection obligations to Mr Tharmalingam, he must satisfy the definition of a refugee in Article 1A (2) of the Convention as a person who:

“Owing to a 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.”

PROCEDURAL BACKGROUND

Mr Tharmalingam arrived at Sydney Airport on 31 March 1997 on a flight which had left Colombo on 28 March. Since his arrival he has been in immigration detention at the Immigration Detention Centre, Villawood.  In April 1997 Mr Tharmalingam lodged with the Department an application for a protection visa. This was supported by a written statement dated 18 April 1997 signed by him. He claims to be a Sri Lankan Tamil. He has said that he had no travel documents.

On 30 July 1997, the Delegate advised Mr Tharmalingam that his application for the grant of a protection visa was refused as he did not satisfy the Convention definition of a refugee. On 31 August 1997, Mr Tharmalingam applied to the RRT for review of the Delegate’s decision. There was a hearing before the RRT on 30 September 1997 and, as noted earlier, the RRT gave its decision the subject of the present application for review on 23 October 1997, affirming the Delegate’s decision not to grant a protection visa.

MR THARMALINGAM’S ACCOUNT OF THE BACKGROUND FACTS

The facts as asserted by Mr Tharmalingam are, in outline, as follows:

Mr Tharmalingam was born on 29 March 1961 in the Jaffna Peninsula region of Sri Lanka. He left school in 1981. In March 1983 he became employed in Colombo by the National Savings Bank (“the Bank”). In that year he was “severely affected” by ethnic riots and he returned home to Jaffna in about July or August. In early 1984, when he felt that it was “safe” to do so, he resumed his job in Colombo.

In January 1985 he transferred from Colombo to the Bank’s branch in Jaffna. He was promoted from Clerk Grade 7 to Clerk Grade 6 and his salary quintupled from Rs 2,000 a month to Rs 10,000 a month. At the time, he was about twenty-four years old.

Mr Tharmalingam’s duties at the Jaffna branch of the Bank required him to travel each day to the Sri Lankan Army camp in the Jaffna Fort. Banking operations were conducted in the Fort by all banks in Jaffna because of the large number of robberies elsewhere. Customers would go to the Fort to make deposits and to the Bank’s normal premises to make withdrawals. Mr Tharmalingam had to be escorted through the high-security area of the Fort where people were kept in detention. He would take money from vaults in the centre of the Fort out to two rooms which the Army had allocated to the Bank for its functions. He would there serve the Bank’s customers who had come to the Fort to make deposits.

Mr Tharmalingam’s daily trips carrying money from the Fort to the Bank’s premises were supported by an Army escort and took him through a stronghold area of the Liberation Tigers of Tamil Eelam (“LTTE”). Sometimes the LTTE held up the vehicle carrying the funds and made off with the money. The LTTE regularly stopped Mr Tharmalingam to ask him about security arrangements within the Fort. He claimed that, under duress, he supplied to the LTTE details of people who were being held in detention and tortured in the Army camp as well as details of the major account-holders at the Bank. He said that the LTTE used the latter information to extort money from the account-holders. He claimed that sometimes he withheld details and that he was tortured for doing so by the LTTE on two or three occasions. He claimed that the Bank knew that the LTTE was extracting information from him but had done nothing for fear of retaliation from the LTTE.

In 1985 Mr Tharmalingam married and was promoted to the position of Chief Accountant at the Bank’s Jaffna branch. Of his position as Chief Accountant, he said that he answered to the Manager and the Assistant Manager; that he had responsibility for production of the Branch’s annual profit and loss report, payment of salaries and crediting of interest to the accounts of customers; that an accountant worked directly under him; that there were fifty people working at the branch when he started there in 1985 but that the number had dropped to about thirty-five by the time he left Jaffna ten years later, because employees used to leave their jobs to escape the fighting. He said that the title “Chief Accountant”, as applied to the Jaffna branch, was a “high-sounding nothing” and that formally his position was merely that of a “clerk”, although the Manager called him “Chief Accountant”. He said that this title was an informal internal designation; that he had had no supervisory duties; and that the only relevant employees were himself and the accountant. In 1986 he completed intermediate and final parts of banking examinations set by the Bankers’ Institute.

In 1986, the LTTE demanded that Mr Tharmalingam find out how two prisoners, named Rajan and Jegan, were being treated and whether they had been identified as members of the LTTE. Mr Tharmalingam tried to fob off the LTTE and, in response, the LTTE passed false information about him on to the Army. As a result, he was detained by the Army in the Fort for five days and tortured but was released after the Bank intervened. After his release, he gave the LTTE hard-to-get news of the inmates whom he had seen during his incarceration.

He continued to work at the Bank and the LTTE continued to extract information from him about accounts at its Jaffna branch. He said that he had to do what the LTTE demanded of him because in the period 1986-1990 the LTTE had been going from house to house and threatening Tamils with dire consequences if they withheld support. From 1990-1995, according to Mr Tharmalingam, the LTTE openly extorted money from wealthy Tamils and held their relatives to ransom. Every Tamil was too frightened to refuse the LTTE’s demands. The other bank officers were also of Tamil ethnicity and they too had all been harassed by the LTTE.

In 1987, the Indian Peace Keeping Force (“IPKF”) arrived in Jaffna and the LTTE withdrew. However, the LTTE asked Mr Tharmalingam to take photographs of the IPKF sentries and of positions in the Fort. Mr Tharmalingam refused and for this he was tortured by the LTTE. He was forced to pay the LTTE Rs 500 a month.

In May 1989 he was arrested, detained and beaten by the IPKF at the behest of a man who envied Mr Tharmalingam’s progress in his banking career and his position as Chief Accountant of the Jaffna branch. In detention by the IPKF, Mr Tharmalingam was assaulted and humiliated until the Bank intervened and obtained his release.

In late 1989 when the IPKF left Jaffna, heavy fighting broke out between the Sri Lankan Army and the LTTE. This interrupted normal activities, including Mr Tharmalingam’s work at the Bank, which had to keep shifting its operations from place to place to avoid the constant shelling between rival positions. At this time the LTTE ordered Mr Tharmalingam to dig bunkers at night. This made him unhappy but he had no option but to do the work. All Tamils were in a similar predicament. He decided that he could not continue to live in peace in Jaffna but felt trapped because he could not leave his family.

In January 1995, the LTTE ordered Mr Tharmalingam to act as their “bagman” within the Bank. This involved collecting money for the rebel “Fund to Reclaim Our Land” from co-workers and bosses as well as from the Bank’s customers. This activity took place openly, account books being kept at the Bank for the purpose. The LTTE made regular visits to the Bank to check the progress of the account. He collected some Rs 300,000 in this way. Because of his role as “bagman”, Mr Tharmalingam came to be known as an LTTE supporter by his neighbours. He dreaded being caught by the Sri Lankan Government forces because of this reputation. In fact, however, he did not collect for the LTTE of his own volition and was only trying to save his life. The Bank’s officers feared to tell the Bank’s head office in Colombo about what was going on for fear of losing their jobs. Some of the customers tried to shift their accounts to Colombo in order to escape the LTTE’s demands.

In October 1995 the Sri Lankan Army captured Jaffna. The LTTE had ordered all the Tamils to leave Jaffna before the attack started but Mr Tharmalingam preferred to stay rather than to be in the hands of the LTTE militants. Unfortunately, however, his family was caught in the cross-fire and one of his brothers was killed when a shell struck the family’s house. The sight of the brother’s mutilated body shocked the family and persuaded it to flee the Jaffna area. I interrupt this account of Mr Tharmalingam’s claims to note that a death certificate in respect of the brother shows that he died on 1 October 1995 at Neervely from being “hit by a shell”.

Mr Tharmalingam and his family travelled by land and sea, through constant bombing and shelling, to the Vanni area. They ran out of money as their savings were at the Bank. Mr Tharmalingam wanted to get his old job back at the Bank’s head office in Colombo but the LTTE refused to give him a pass. The family tried to make its way to safety through the jungle but was turned back by the LTTE. The LTTE sent Mr Tharmalingam’s family back to Vavunikulam but held him for two weeks and made him do menial duties. He was assaulted when he refused to do certain tasks. After this, the LTTE allowed him to travel south to Colombo, on condition that he go without his family. He went under the threat of harm to his family if he did not send the LTTE money from time to time.

In January 1996, Mr Tharmalingam arrived in Colombo “with a heavy heart”. After speaking to the Bank’s head office, he secured a job at the Bank’s Wellawatte branch as a casual clerk at Rs 10,000 a month. He says that he got the job because he had a good name in Colombo and because only the Jaffna branch manager had known of his LTTE-linked activities in Jaffna. He sent money to his family to protect them from the LTTE.

During the period from January 1996 to March 1997 in Colombo, Mr Tharmalingam was arrested about five times in Army and Police round-ups during security alerts. The reason was that his National Identity Card identified him as a Tamil who came from Jaffna. In particular, in February 1996, after the LTTE bombing of the Central Bank in Colombo, he was held for three days and beaten about the face and body and kicked in the genitals until he bled. He could not walk straight the next day because of the excruciating pain. His brother bargained for his release.

The next day, officers of the Colombo CID (a security organisation) arrived at the house where he and his brother lived and demanded money, warning that they would be back. Mr Tharmalingam tried to move to another address but, as a single unaccompanied man from Jaffna, he found it difficult by obtain accommodation. He decided to leave the country with his family.

He waited for his family to join him in Colombo but troubles in Vanni prevented them from doing so. His relationship with his brother grew strained because of his troubles with the Police.

In October 1996, security forces in Jaffna passed information about LTTE supporters to the CID in Colombo. Mr Tharmalingam was arrested by the Wellawatte Police and, over a period of three days, he was interrogated, starved and made to drink the urine of Police officers as a punishment. A friend from the Bank’s head office secured his release. The Police told him not to change his address.

In December 1996, Mr Tharmalingam applied for a visitor’s visa to Australia for himself and his family but his application was refused.

In March 1997, a friend at the Bank warned Mr Tharmalingam that the Jaffna branch had been required to inform the CID about employees who had recently been transferred to, or employed in, Colombo branches of the Bank. The Sri Lankan army, which had confiscated some papers in 1995, realised, after going through them, that Mr Tharmalingam had been instrumental in collecting Rs 300,000 for the LTTE. His friend advised him to leave Colombo. He took that advice and went to Vavunikulam where he contacted an agent who arranged to get him to Australia on a false passport for an amount of Rs 500,000.

He returned to Colombo on 25 March and, as noted earlier, departed there on 28 March, arriving in Australia on 31 March.

Mr Tharmalingam claims that he fears returning to Sri Lanka as he feels that he is under sentence of death from the security forces. He says that he cannot bear the cruel and degrading behaviour of the security forces in the encounters, round-ups and interrogations which he has experienced.

OUTLINE OF REASONS OF THE RRT

The RRT’s Reasons for Decision are divided into sections addressing the background to the application for review, the legislation, the Convention, relevant information relating to Sri Lanka, Mr Tharmalingam’s “Claims and Evidence”, the RRT’s “Findings and Reasons”, its Conclusion and its Decision. Mr Tharmalingam’s submissions on the appeal require close attention to be given to the RRT’s Findings and Reasons which are conveniently divided into twenty-five numbered paragraphs. (I have found the Member’s procedure of recording his findings in this way helpful.) Some findings assume greater importance than others but, because of the nature of Mr Tharmalingam’s submissions on the appeal, I think it desirable to refer to them all in a summary fashion. I do not, however, think it necessary or desirable to outline the RRT’s reasons for rejecting certain aspects of Mr Tharmalingam’s claims or evidence since, generally, the RRT’s fact finding is not open to attack and Mr Tharmalingam does not attack it.

1.         Importantly, the opening two sentences in the “Findings and Reasons” section are as follows:

“I find that the main plank of Mr Tharmalingam’s story, that he had been made Chief Accountant at the National Savings Bank’s office in Jaffna, lacks credibility. It is from this alleged fact that almost all his later claims flow.”

2.         The RRT accepted Mr Tharmalingam’s claim that his first job was with the Bank in Colombo in 1983.

3.         It accepted that he had been compelled to flee Colombo for Jaffna temporarily in 1983 as a result of Singhalese mob violence against Tamils.

4.         It accepted his claim that he returned to his Colombo job in early 1984, after the riots had died down.

5.         The Member had misgivings about Mr Tharmalingam’s claim that he moved to the Bank’s branch in Jaffna in 1985 but was prepared to “give him the benefit of the doubt on this claim and accept it”.

6.         The RRT accepted Mr Tharmalingam’s claim that he had been given the unpopular duty of travelling through the LTTE lines to the Army camp at Jaffna Fort every day to accept deposits from Bank customers and bring money back to the Bank at the close of the day.

7.         It accepted the claim that the LTTE had held up the vehicle on a few occasions and made off with the Bank’s funds.

8.         It accepted the claim that the LTTE rebels had often asked Mr Tharmalingam to furnish details of security deployments at the Army camp and that he may have been assaulted by the rebels on occasions when he refused to give information.

9.         It accepted the claim that the LTTE had forced Mr Tharmalingam to supply details of the major account-holders at the Bank’s branch in Jaffna.

10.       It accepted the claim that in 1986 the LTTE had demanded that Mr Tharmalingam find out whether two prisoners at the Army camp, Rajan and Jegan had been identified as LTTE supporters.

11.       The RRT did not accept that the LTTE had pressured Mr Tharmalingam in the manner mentioned because he had special knowledge of people held in detention at the Fort and did not find it credible that the Army would have allowed him to pass through a high-security detention area every day where he could plainly witness the identity of high-risk suspects who had been arrested.

12.       It did not accept Mr Tharmalingam’s claim that when he could not or would not give the LTTE rebels the information that they desired, they informed the Army and that the Army detained and tortured him for five days.

13.       The RRT did not accept the claim that Mr Tharmalingam was released by the Army from detention after intervention by the Bank, and that after his release he gave the LTTE news of inmates held in detention at the Army Camp.

14.       The RRT accepted the claim that Mr Tharmalingam continued giving the LTTE information about account-holders at the Bank which the LTTE used to extort money.

15.       The RRT accepted the claim that the Bank’s employees and manager at the Jaffna branch knew that he was supplying information to the LTTE but were powerless to intervene.

16.       The RRT did not accept Mr Tharmalingam’s claim that the LTTE asked him to take photographs of the IPKF sentries and positions inside the Fort and of the IPKF guards who escorted the Bank vehicle back from the Fort.

17.       The RRT accepted that Mr Tharmalingam was forced to pay the LTTE rebels Rs 500 a month but did not accept that this was required as a punishment for his not agreeing to take photographs of the IPKF.

18.       The RRT accepted Mr Tharmalingam’s claim that in 1989 he was detained by the IPKF on false charges put up by a man jealous of his career in the Bank and that the Bank intervened to have him freed.

19.       The RRT accepted his claim that when the LTTE returned to parts of Jaffna following the IPKF’s withdrawal, Mr Tharmalingam, “had, like other Tamils there been forced to dig bunkers, tunnels, etc. for the rebels and that this had caused him unhappiness.”

20.       The RRT accepted Mr Tharmalingam’s claim that in 1995 he was forced to become a bagman for the LTTE, openly collecting money for the rebels from Bank employees and Bank customers and taking money from the Bank’s coffers, and that he undertook this task under duress.

21.       The RRT accepted the claim that Mr Tharmalingam’s brother was accidentally killed in a bombing attack; that the family decided to flee Jaffna; that they reached the Vanni area; that they suffered great hardship; and that the LTTE allowed Mr Tharmalingam to travel on south but held his family back, perhaps as surety for money which he was to send to the LTTE from Colombo.

22.       The RRT said that it found Mr Tharmalingam’s claim that Bank officials in Colombo did not know that he had used his position in Jaffna to give the LTTE information on the main account-holders and to extort money from the Bank’s customers and employees and from the Bank itself to be “extremely implausible”.

23.       The RRT found it “very implausible” that the Bank would have given Mr Tharmalingam a casual job in Colombo in 1996 “particularly as Mr Tharmalingam claimed that the casual job had carried his Chief Accountant’s salary” (his claim was that he secured a job at the Bank’s Wellawatte branch as a casual clerk at Rs 10,000 a month - the amount of his salary as Chief Accountant at the Jaffna branch in 1995).

24.       In this lengthy paragraph the RRT addressed the question of “round-ups”. It accepted Mr Tharmalingam’s claim that on returning to Colombo in January 1996 he faced harassment and discrimination in being rounded-up for questioning about five times by security forces because of his Tamil identity but found that some of his claims lacked credibility and, importantly, did not accept that “in a climate of civil war” the round-ups could be termed “persecution”. This part of the RRT’s reasons includes the following:

“Successive reports on human rights abuses in Sri Lanka by both Amnesty International and the US State Department point to indiscriminate arrests of Tamils in Colombo. However, such roundups are an unpleasant but understandable condition of undergoing constant security checks in a climate of equally constant sabotage and bombings in a heavily-populated area.”

The RRT Member expressed the opinion that Mr Tharmalingam would have fitted the majority category of detainees: those who are freed in a day or two. The Member did not accept that he would have been held for three days and tortured in the general round-up of hundreds of Tamils in the aftermath of the February 1996 Central Bank bombing.

25.       In another important and lengthy section of the RRT’s Reasons, the Member recorded that he did not accept “Mr Tharmalingam’s claim that he had been tortured in detention over three days in October 1996 after security forces in Jaffna had passed Colombo CID information that identified him as an LTTE supporter.”

It is convenient to note in a little more detail the RRT’s reasoning in par 25 in this respect. The Member rejected the claim on the ground that it was inconsistent with information available to the RRT on general conditions in Sri Lanka at the time and with Mr Tharmalingam’s own evidence. In relation to the latter, the Member considered the two possible perceived connections with the LTTE which might be suggested to have given rise to the alleged imputed political opinion. One was the fact that Mr Tharmalingam had been made to dig “bunkers, tunnels etc” in 1989 for the LTTE while they controlled Jaffna. The other was that as an officer of the Bank, he had been suborned by the LTTE.

In relation to the former, the Member did not accept that Mr Tharmalingam would have been tortured in three days in October 1996 for what he, like other citizens in areas under LTTE domination in 1989, had been forced by the LTTE to do. The RRT’s Reasons for Decision state:

“If that were to be the case, most Jaffna Tamils would be in detention. A search of library resources available to the Tribunal has shown no instances of persecution on those grounds.”

In relation to the second possible reason, that is Mr Tharmalingam’s role as “bagman” for the LTTE, the relevant part of the RRT’s Reasons for Decision commences as follows:

“If, however, the reason Colombo CID had tortured Mr Tharmalingam in October 1996 was because it had found out from authorities in Jaffna that he had been collecting a considerable sum of money for the LTTE while working for the NSB [the Bank] and believed that this made him an LTTE supporter, I do not accept that he would have been freed without being charged.”

The RRT continued by expressing the opinion that it was “extremely implausible” that the Bank would have intervened to have him freed and that, even if the Bank had felt charitably inclined, it would have been aware that its intervention could bring the Bank itself under Police investigation as condoning LTTE-linked activity. The relevant paragraph concludes:

“Finally, if the security forces in Jaffna and the Colombo CID had been aware that Mr Tharmalingam had been an LTTE bagman in October 1996 I cannot reconcile this with his claim that it was in March 1997 - six months later - that Jaffna authorities had tumbled to evidence of these activities.”

The reference at the end of this passage to the discovery by “Jaffna authorities” in March 1997 seems to arise from Mr Tharmalingam’s allegation that the Sri Lankan army discovered in March 1997, from papers which it had confiscated in 1995, that he had been instrumental in collecting Rs 300,000 for the LTTE.

The Member next stated that “even if” he were to accept Mr Tharmalingam’s claim that he had faced persecution in October 1996, or his claim that following the alleged “discovery” in March 1997 he feared being arrested and charged with extortion from Bank customers and misappropriation of Bank funds in aid of the LTTE, neither claim gave rise to, or was, a fear of Convention-related persecution. Rather, each was a fear of prosecution on criminal charges. The Member referred in this respect to my decision in Welivita v Minister for Immigration & Ethnic Affairs, unreported, 18 November 1996.

The RRT’s “Findings and Reasons” conclude with the following summary paragraph:

“In summary, I find that while I am prepared to accept some of the basic facts of Mr Tharmalingam’s claims, his story as a whole lacks credibility.   I find that his claims of persecution relating to being included in security roundups in Colombo in 1996 are not well founded as his experiences were the result of normal security procedures in a climate of terrorism and civil war and that the treatment he received was no different to that experienced by hundreds or thousands of other Tamils rounded up in that period even though he might have personally found it cruel and degrading.  I find that his fears of a CID investigation of his extortionary activities at the bank under LTTE orders are not fears of Convention-related persecution but, rather, fear of prosecution for activities judged under criminal law.” (emphasis supplied)

GROUNDS OF THE PRESENT APPLICATION

In his amended application for an order of review, Mr Tharmalingam propounded the following grounds (the bold print indicates amendments made by the filing of the amended application in Court at the hearing):

“1.       There was an error in the interpretation of the applicable law and/or its application to the facts as found.

Particulars

(a)       The Tribunal erred in concluding that being repeatedly “picked up in roundups” did not constitute persecution.

(b)       The Tribunal erred in concluding that the applicant’s fears of being punished extra judicially for activities on behalf of the Liberation Tigers of Tamil Eelam (LTTE) was not for reason of his perceived political opinion.

(c)        The Tribunal erred in finding that “legitimate security measures imposed by authorities” could not constitute persecution and in so doing erroneously held that the question of whether acts causing harm constitute persecution of individuals could be relative to the security threat to the state party to the Refugee Convention.

(d)       The Tribunal erred in failing to address whether on the factual findings it made in relation to the applicant, there was a basis for a well founded fear of persecution within the meaning of the Convention Relating to the Status of Refugees (the “Convention”).

(e)        The Tribunal erred in failing to properly identify the harm the applicant feared for the purpose of applying the Convention definition of refugee.

2.         The Tribunal failed to observe procedures which it was required by law to observe.

Particulars

(a)       The Tribunal failed to set out its findings on material questions of fact in that it failed to address the evidence in material cited in the decision as to,

            (i)         torture in police custody being common in Sri Lanka, and

            (ii)        Tamils being subject to arbitrary arrest, detention and torture because of their ethnicity.

(b)       The Tribunal failed to refer to evidence or other material on which findings of fact were based in that the Tribunal adduced no evidence to support its conclusion that, the applicant would not have been freed “so quickly” by the CID if he had been suspected by them of having collected money for the LTTE.

3.         The Tribunal failed to observe procedures which it was required by law to observe, in that it did not act according to substantial justice and the merits of the case.

Particulars

(a)       The Tribunal failed to have regard to relevant information in the material used in the making of the decision as to,

            (i)         torture in police custody being common in Sri Lanka, and

            (ii)        Tamils being subject to arbitrary arrest, detention and torture because of their ethnicity.

(b)       The Tribunal failed to act in accordance with substantial justice and the merits of the case in considering that the applicant’s evidence in relation to the events of October 1996 and March 1997 were inconsistent.”

REASONING

I will deal with the issues debated on the hearing of the appeal in sequence.

A.        Counsel for Mr Tharmalingam submits, first, that there is some ambiguity as to the reasons why the RRT rejected his client’s claim of torture in detention over three days in October 1996. The submission is that the Reasons for Decision suggest, early in par 25, that the Member did not accept that the event had occurred at all, while the summary implies that he accepted Mr Tharmalingam’s factual claim, but characterised the resultant fear as one of punishment for criminal activity. Counsel for Mr Tharmalingam seeks to emphasise that the law requires that the decision-maker first note precisely the fear claimed and then identify the circumstances said to give rise to it: he refers to Eshetu v Minister for Immigration & Ethnic Affairs (1997) 71 FCR 300 (FC) at 313C (Davies J).

Counsel for the Minister seeks to emphasise that underlying the RRT’s rejection of Mr Tharmalingam’s application are: first, its finding that his story lacked credibility in crucial respects, particularly, that he had been made Chief Accountant at the Bank’s branch in Jaffna and that he had been tortured by the Police in Colombo for three days in October 1996; second, its conclusion that the periodic round-up of young Sri-Lankan males in Colombo did not constitute persecution; and, third, its conclusion that any punishment which Mr Tharmalingam would suffer on returning to Sri Lanka for assisting in the embezzlement from the Bank in Jaffna would constitute legitimate prosecution for a criminal offence and therefore could not be persecution. Counsel submits that there is no legal error in any of these respects.

In my view, the RRT clearly rejected Mr Tharmalingam’s factual claim “that he had been tortured in detention over three days in October 1996 after security forces in Jaffna had passed Colombo CID information that had identified him as an LTTE supporter”. As noted earlier, it did so by reference to information available to the RRT on general conditions in Sri Lanka at the time and by reference to Mr Tharmalingam’s own evidence. It was in relation to the latter that the RRT considered the only two possible LTTE-related activities which might be suggested to have given rise to detention and torture. The first was Mr Tharmalingam’s work, apparently in late 1989, of digging “bunkers, tunnels etc” at night for the LTTE. This was an activity in which the RRT, at par 19 of its Reasons for Decision, accepted Mr Tharmalingam had engaged. The other was his role as “bagman” for the LTTE. This was an activity in which the RRT, in par 20 of its Reasons for Decision, also accepted he had engaged. The RRT commenced the part of its Reasons for Decision dealing with the latter with the words:

“If, however, the reason Colombo CID had tortured Mr Tharmalingam in October 1996 was because it had found out from authorities in Jaffna that he had been collecting a considerable sum of money for the LTTE while working for the NSB and believed that this made him an LTTE supporter, ... ”

In context, this passage does not constitute a finding that Mr Tharmalingam was detained and tortured over a period of three days in October 1996, or that the Colombo CID had learned of his role of bagman for the LTTE from authorities in Jaffna or, of course, that this piece of intelligence had caused it to believe that he was an LTTE supporter. Rather, the Member was explaining why he found the claim of detention and torture by the Colombo CID over three days in October 1996 implausible.

I have set out earlier the final “summary paragraph” of the Reasons for Decision. The literal terms of the opening sentence to the effect that Mr Tharmalingam’s “story as a whole lacks credibility” are wide enough to cover the claimed detention and torture of October 1996. The second sentence, to my mind, presents no difficulty: it was open to the RRT to conclude that the round-ups of young Tamil males in Colombo in 1996, as described by it and in the circumstances at the time, did not constitute persecution. I note that in Sandralingham v Secretary of State for the Home Department [1996] Imm AR 97, the English Court of Appeal also held that the periodic round-up and detention of young Tamil males in Colombo was not, as described and in the circumstances, “persecution” for the purpose of the definition of “refugee” in the Convention.

The RRT’s reference to Mr Tharmalingam’s claim that he found the round-ups “cruel and degrading” shows that the Member had in mind terms in which Mr Tharmalingam had expressed at least one of his fears. At the conclusion of his statement dated 1 April 1997, Mr Tharmalingam had said:

“I could not bear any more of the cruel behaviour and subject myself to degrading treatment by the security officers. Please take the above facts into consideration and grant me the Protection of this country where I could sleep peacefully at present.” (emphasis supplied)

Similarly, in the final paragraph of the section of its Reasons for Decision dealing with Mr Tharmalingam’s “Claims and Evidence”, the RRT said:

“Because of the CID investigation into his LTTE/bank dealings, Mr Tharmalingam fears going back to Sri Lanka as he feels he is under the security forces’ sentence of death there. He cannot bear the cruel and degrading behaviour of the security forces in the sort of encounters in round-ups, interrogations etc. he has experienced.” (emphasis supplied)

A fair reading of the RRT’s Reasons for Decision is that while it accepted that Mr Tharmalingam would, if he were to return to Colombo, be subject to periodic round-ups, security checks and short periods of detention and interrogation, a response of this kind by the Sri Lankan Government to the “very serious LTTE security threat” was an understandable implementation of legitimate security measures, as distinct from persecution for reasons of race or imputed political opinion. In my opinion, the RRT was entitled to take this view of the kind of activity of the security forces which I have just described. But this was not the only fear held by Mr Tharmalingam (see below).

The third and final sentence of the “summary paragraph” set out earlier demands close attention. It will be recalled that that sentence is:

“I find that his fears of a CID investigation of his extortionary activities at the bank under LTTE orders are not fears of Convention-related persecution but, rather, fear of prosecution for activities judged under criminal law.”

The part of the RRT’s “Findings and Reasons” from which this summary sentence is derived is part of par 25. That part, not set out earlier, commences, “Even if I accept Mr Tharmalingam’s claim either that he faced persecution in October 1996 or, following March 1997, fears being arrested and charged with extortion of bank customers and misappropriation of bank funds for the purpose of aiding the LTTE ...”. Mr Tharmalingam submits that the third and final sentence of the summary paragraph set out above reveals two errors: first, that the RRT wrongly found that what Mr Tharmalingam truly feared was a CID investigation of his extortionary activities at the Bank in Jaffna as bagman for the LTTE; and, second, that a fear of that kind could not, under any circumstances, be a fear of Convention-related persecution.

Notwithstanding the terms of the third and final sentence of the summary paragraph (“I find that his fears of a CID investigation ... ”), it is not clear that the Member was intending to make a positive finding that what Mr Tharmalingam feared was limited to a criminal investigation of his extortionary activities. If he did, he failed to identify correctly Mr Tharmalingam’s fear arising out of his role of bagman for the LTTE (see below). Moreover, the RRT meant to say that the hypothesised detention of Mr Tharmalingam in October 1996 for three days, and a torturing of him over that period, could not have been persecution for imputed political opinion I have difficulty in understanding how it arrived at that conclusion. In Welivita v Minister for Immigration and Ethnic Affairs, 18 November 1996, I set out (at 24-25), with approval, the following paragraphs from the Handbook on Procedures and Criteria for Determining Refugee Status Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (Geneva, January 1992):

“84.     Where a person is subject to prosecution or punishment for a political offence, a distinction may have to be drawn according to whether the prosecution is for political opinion or for politically-motivated acts. If the prosecution pertains to a punishable act committed out of political motives, and if the anticipated punishment is in conformity with the general law of the country concerned, fear of such prosecution will not in itself make the applicant a refugee.

 85.      Whether a political offender can also be considered a refugee will depend upon various other factors.  Prosecution for an offence may, depending upon the circumstances, be a pretext for punishing the offender for his political opinions or the expression thereof.  Again, there may be reason to believe that a political offender would be exposed to excessive or arbitrary punishment for the alleged offence.  Such excessive or arbitrary punishment will amount to persecution.

 86.      In determining whether a political offender can be considered a refugee, regard should also be had to the following elements: personality of the applicant, his political opinion, the motive behind the act, the nature of the act committed, the nature of the prosecution and its motives; finally, also, the nature of the law on which the prosecution is based.  These elements may go to show that the person concerned has a fear of persecution and not merely a fear of prosecution and punishment - within the law - for an act committed by him.”

Where there is extra-judicial or unduly severe punishment, the inference is open that the punishment is imposed, not for contravention of the criminal law, but for a Convention reason: Wu v Minister for Immigration and Ethnic Affairs (1997) 72 FCR 524 at 526D (Lee J).

However, any difficulty which may otherwise exist with this particular part of the RRT’s Reasons is of no consequence, because the RRT rejected Mr Tharmalingam’s claim that he had been detained and tortured for three days in October 1996. Once that claim is eliminated from consideration, the only factual claim remaining is that of round-ups and associated security checks, interrogation and related detention for one or two days, discussed earlier.

B.        Mr Tharmalingam submits that the RRT erred by failing to identify correctly the fear that he claimed to hold. In my view, the RRT correctly understood that one fear that Mr Tharmalingam claimed to have was of what he described as the cruel and degrading behaviour of the security forces in the sort of encounters in round-ups, detention and interrogation he had in fact experienced. This was, in the view of the RRT, the “ordinary” treatment meted out to young Tamil men in Colombo at the time and the RRT rejected his one and only claim of having been subjected to anything extraordinary, that is, the claim that he was subjected to detention and torture by the Colombo CID over three days in October 1996. But, as noted below, in my view, on a fair reading of Mr Tharmalingam’s statement as a whole, he also feared detention and torture by the security forces because of his role of bagman for the LTTE.

C.        Mr Tharmalingam submits that it was incumbent on the RRT to review his case in the light of those of his claims which it did accept. In particular, he points to the fact that the RRT accepted that he had in fact acted as bagman for the LTTE when he was employed at the Bank’s branch in Jaffna in 1995 and that these facts were known to the Bank. The RRT should, so the submission goes, have considered whether these facts gave rise to a well-founded fear of persecution for imputed political opinion. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 294-5, Kirby J referred to the necessity to “consider all the relevant possibilities by looking back at the entirety of the material placed before”  the decision-maker and (implicitly) to “[stand] back from the particular grounds and consider [...] the case in its entirety”. Similarly, in Coonghe v Minister for Immigration and Ethnic Affairs, unreported, 6 April 1998, Finkelstein J said (at 5) that evaluation of the chance of persecution:

“ ... involves a degree of speculation in the sense of predicting or making an assessment of what the future will hold for an applicant”

and that,

“ ... the decision-maker must not, by a process of factual findings, foreclose reasonable speculation upon the chances of persecution emerging from a consideration of the whole of the evidence.”

I have found this the most difficult part of the case. 

In Mr Tharmalingam’s statement dated 1 April 1997 he described his role as bagman for the LTTE at the Jaffna branch of the Bank in 1995; claimed that in March 1997 a friend of his who was working at the Bank’s head office stated that the Bank had been asked to report to the CID office with regard to Bank employees from the Jaffna branch who had been recently transferred to or employed in branches in Colombo; and, finally, claimed that he “could not bear any more of the cruel behaviour and subject [himself] to degrading treatment by the security officers”. I think that on a fair reading of his statement as a whole, one of his fears was cruelty and degrading treatment from the Colombo CID if his bagman role should become known to it.

The Member said:

“20      I accept the claim that in 1995 [Mr Tharmalingam] had been forced to become a bagman for the LTTE, openly collecting money for the rebels from bank employees and bank customers and from the bank’s coffers. I accept that [sic - the] claim that he had accepted this task under duress.”

In par 22, the Member said that he found it “extremely implausible” that the Bank’s officials at its head office in Colombo did not know of his activity. There is no consideration of the chance of wider revelation of that role, in particular, to the Colombo CID, and there is no consideration of the likelihood that a revelation of the particular matter to the “authorities” would lead to persecution of Mr Tharmalingam. Detention and torture by the Colombo CID upon and because of discovery of Mr Tharmalingam’s role as bagman for the LTTE would arguably be persecution for imputed political opinion as distinct from either (a) prosecution in the usual way for a criminal offence before the courts, or (b) short-period detention and interrogation following general round-ups of young Tamil males in Colombo.

The RRT did not accept that Mr Tharmalingam had already been persecuted by virtue of his role as bagman, or at all. But was it required to consider, in the light of the claims it did accept as well as of the “Relevant Country Information”, whether Mr Tharmalingam fears persecution in the future by reason of imputed political opinion, if he were to return to Sri Lanka, and, if so, whether that fear is well-founded? I think that it was. In this regard it is appropriate to refer not only to the Member’s acceptance of Mr Tharmalingam’s account of his bagman role, but also to:

            (i)         his claim, which the RRT did not accept or reject, that in March 1997, his friend at the Bank gave him a tip-off that the Jaffna branch had been ordered to tell the CID about those employees who had been recently transferred to, or been employed in, Colombo branches (the RRT referred to a difficulty in reconciling this claim with the claim of detention and torture by the Colombo CID in October 1996, which it rejected);

            (ii)        the fact that his bagman role was already known to Bank officers in Colombo as well as in Jaffna.

If the RRT had addressed the matter, it might have concluded that his claimed further fear which I have described was well-founded.

I think that it was incumbent on the RRT to review those claims which it did accept in the manner which I have indicated.

It suffices to dispose of the application for me to say that in my view both of the grounds referred to in ss 476 (1) (a) and (e) of the Act are made out. First, the RRT failed to observe procedures which it was required by law to observe in that it failed to act according to substantial justice and the merits of the case (cf s 420 (2) (b) of the Act) and to set out its findings on material questions of fact (cf s 430 (1) (c) of the Act). It failed in both respects because it failed to address, and set out its findings upon, the particular questions whether Mr Tharmalingam also feared persecution for imputed political opinion arising out of his role as bagman for the LTTE and, if so, whether that fear was well founded.  Second, there was an error in the application of the applicable law to the facts as found, in that there was a failure to address the question whether, on a review of the factual findings made, Mr Tharmalingam feared persecution for imputed political opinion arising out of his role as bagman for the LTTE and, if so, whether that fear was well founded.

CONCLUSION

The matter will be remitted to the RRT for determination according to law.

Associate:

Dated:              19 May 1998