THE COURT ORDERS THAT:

1.                  The decision of the Refugee Review Tribunal given on 12 June 1998 be set aside.

2.                  The matter be remitted to the Tribunal for determination according to law.

3.         The respondent should pay the applicant’s costs of the application.

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

REASONS FOR JUDGMENT

HELY J:         The applicant is a citizen of Sri Lanka.  She arrived in Australia on 1 September 1997 without a passport or a visa.  She was refused immigration clearance and taken to the Villawood Detention Centre.  On 5 September 1997 application was made for a protection visa.  The subsequent history of that application is summarised in the reasons for decision of Refugee Review Tribunal (“RRT”) given on 12 June 1998.  RRT affirmed the decision not to grant a protection visa to the applicant.

The applicant was born on 27 May 1971.  Her family originally came from the Jaffna Peninsula.  RRT accepted that as a schoolgirl she had some involvement with the Liberation Tigers of Tamil Eelam (“LTTE”), including playing the bass drum in her school band for LTTE funerals, helping to collect money and food, and treating the wounded. 

The applicant said that her immediate family members were not involved with LTTE, but some more distant relatives were so involved.  The only detail given relates to a cousin, Millar.  He was a black tiger suicide bomber, who was killed in approximately June 1987 in an attack on a Sri Lankan army camp, just before the Indian Peace Keeping Force (“IPKF”) came to Jaffna in about August 1987.

The applicant gave details of being arrested and mistreated on a number of occasions in 1988 and 1989 by members of the IPKF.  RRT accepted her claims in that regard.  But as IPKF left Sri Lanka in early 1990, and as no political party in Sri Lanka advocates the reintroduction of Indian troops, RRT concluded that there is no real chance of an IPKF return, and if only for that reason, no real chance of further mistreatment of the applicant at the hands of the IPKF.

Between 1985 and 1995 the area in which the applicant lived was under the control of LTTE.  During that period the applicant made no claims of arrest or of detention.  However, in around July or August 1995, the Sri Lankan army recaptured Jaffna town, and extended its control over the peninsula.  On 31 April 1996 the Sri Lankan army captured Vadamarachichi, Jaffna, where the applicant’s family then lived.  Vadamarachichi is the birthplace of the LTTE leader, Prabha Haran.

RRT found it plausible that the applicant was detained for questioning and was mistreated on at least one occasion, and possibly twice, by the Sri Lankan army, which was seeking LTTE terrorists opposed to the government following the recapture of Jaffna.  RRT was not satisfied, however, that the claimed rape took place. 

Earlier in its reasons, RRT summarised the applicant’s claims as follows:

“The applicant also claimed that following the Sri Lankan armed forces recapture of Jaffna town in 1995 and the subsequent extension of its control over the peninsula she was detained again.  After the capture, the army had been going from house to house seeking information about the occupants’ knowledge of and links with the LTTE.  As she lived in the Vadamarachichi area, birthplace of the LTTE leader Prabhakaran, the army had a particular interest in LTTE activities there.  She has claimed that in April 1996 she was taken to a room where she was beaten, and then locked in a dark cell where she was cut with blades.  Other women with her were raped, and when she saw this she became unconscious.  After her family paid a bribe she was released having spent three days in detention.

...

Another detention, in mid May 1996 was also claimed.  The applicant stated before the present Tribunal that on this occasion, because her area had been put under LTTE control, she had been arrested, beaten, put in a room and raped.  I put to the applicant that she had not previously claimed that she had been raped, and she answered that she had been reluctant to do so because the earlier “case officer” was male.”

At page 9 of its reasons for decision, RRT said:

“… I cannot find that this detention, or acts of mistreatment in the course of questioning in detention in relation to terrorist activities, constitutes persecution.”

It is contended that this finding involves legal error, and it will be necessary to return to the details of the applicant’s contentions in this respect later in these reasons.

The applicant claimed that thereafter she left Vadamarachichi to live with her sister in Puthukuddiyerupu.  She was married whilst living there in November 1996 to Sangaraghandylingam Kumaralingam.  They stayed there until August 1997.  This was a LTTE held area , and it had come under attack by the Sri Lankan armed forces.  In August 1997 the applicant and her husband decided to move to Mallavi to escape the fighting.  This district, too, was controlled by the LTTE and they again came to be under army attack.  There was a great deal of shelling, and the applicant and her husband took shelter in the bush when they were separated.  When the friends she was with decided to go to India she had no choice but to go with them as she had no relatives in Mallavi.  The applicant arrived in India on about 15 August 1997.

At page 10 of its decision RRT said:

“The applicant, alone or together with her husband, was from time to time forced to flee as the government forces expanded the area they controlled.  It has been established that no matter how serious, the hardship and dangers to people caught up in civil disturbances, do not, without more, amount to persecution: Periannan Murugasu v MIEA (unreported, Federal Court of Australia, Wilcox J, 28 July 1987 at 12-14).  I do not regard the difficulties associated with avoiding the conflict as grounding a claim to refugee status.”

As earlier indicated, the applicant arrived in Australia on 1 September 1997.  Her husband arrived in Australia illegally on 26 March 1998.  He too made application for a protection visa, which application was refused.  The refusal was confirmed by RRT and is the subject of an application for an order of review.

Mistreatment in detention not persecution

At pages 9 and 10 of its reasons for decision RRT made the following findings:

·           The detentions which the applicant has experienced took place in the context of the legitimate authorities in Sri Lanka attempting to gain control of area formerly held by anti-government terrorists following the retaking of Jaffna in 1995.

·           Questioning received in detention does not amount to persecution in the convention sense, as it was appropriately designed to achieve some legitimate end of government policy and to protect or promote the general welfare of the state and its citizens.

At page 10 RRT quoted from its earlier decision in Paramanathan, and said that “the same situation pertains in the applicant’s case”.  The quotation from Paramanathan was as follows:

“The mistreatment during the detentions cannot be regarded as appropriately designed to achieve a legitimate end of government policy, but neither would it be persecution in the convention sense, but rather indiscriminate cruelty.  Moreover, the evidence suggests that such abuses are no longer so widespread as before.  (Vide Amnesty International Country Report: Sri Lanka, 1996).  Therefore, although the applicant may be subjected to detentions in the foreseeable future as he has been in the past, these detentions do not give rise to a well-founded fear of being persecuted by the authorities for reasons of race or imputed political opinion should he return to Sri Lanka.”

In the application of those observations to the present case, I treat RRT as concluding that this applicant has been subjected to mistreatment in detentions in the past, that this applicant may be subjected to detention in the foreseeable future in which she may be mistreated, but that this does not give rise to a well-founded fear of persecution for a convention reason because mistreatment during detention is simply indiscriminate cruelty.

The present and the future

RRT then stated, correctly, that in considering the applicant’s case it was obliged to assess the facts as they existed at the date of the decision, and in relation to the reasonably foreseeable future.

RRT referred to a DFAT cable of 13 May 1997 to the effect that internally displaced people were moving back into Jaffna from LTTE controlled areas of the northern mainland and that once in Jaffna, people have an opportunity to return to something of a “normal” life, at least in comparison with the displacement in the northern mainland.

Reliance was also placed on DFAT cables of 22 January 1998 and 19 May 1998.  The first of those cables referred to a number of initiatives which had been introduced to protect the human rights of Jaffna civilians.  The second was a comment on the security and human rights situation in the applicant’s home area.  RRT described this cable as reporting the LTTE killing of Brigadier Larry Wijeratne.  The cable stated that he was well known as having played a significant role for the security forces in winning the hearts and the minds of the people in the Vadamarachichi district of the Jaffna peninsula, and for the two years following Wijeratne’s arrival in Point Pedro in early 1996 there have been no recorded disappearances.  Wijeratne was known to have a civil minded approach and to ensure his command implemented sound human rights controls.

At no stage in the proceedings was the applicant or her solicitor informed of the existence of the cables of 22 January 1998 or 19 May 1998, nor were they informed of the general nature or contents of those cables.

The 19 May 1998 cable contained a passage, not referred to by RRT, as follows:

“General Balagala, security force commander for Jaffna, has reassured the people of Jaffna that there will not be a backlash by the security forces against civilians as there had been following the killing of a Jaffna Brigadier in July 1996.”

RRT’s conclusions

At page 8 of its reasons for decision RRT said:

“I find that (the applicant’s) profile is not such as to bring her to the attention of the authorities for more than routine security checks, and therefore does not give rise to a well-founded fear of being persecuted for reasons of actual or imputed political opinion or for any other convention reason.”

That finding was made in the context of a consideration of the extent of the association between the applicant and LTTE.

At page 12 RRT said:

“For the reasons referred to above, I am satisfied that the applicant’s profile is not such as to bring her to the attention of the authorities should she return to Jaffna, and that given the improvement in conditions there over the past years, especially in her home district, her fear of persecution for a convention reason on return is not well-founded.”

There is an issue between the parties as to what this conclusion conveys.  The respondent contends that the expression “her fear of persecution for a convention reason” signifies that given the improvements in human rights conditions in Jaffna generally, and the applicant’s home district in particular, any fear that she has of mistreatment should she return is not well-founded.  The applicant, however, contends that this conclusion does not negate RRT’s earlier finding that the applicant may be subjected to detention and mistreatment in the future, should she return to Sri Lanka, as she has been in the past, but that her apprehension in that regard does not constitute “fear of persecution for a convention reason”, because any mistreatment to which she would be subjected is simply indiscriminate cruelty. 

Mistreatment or convention based persecution?

I do not think that RRT has found that the improved conditions in Jaffna over the past years are such that the applicant’s apprehension of mistreatment should she return is not well-founded.  RRT did not express itself in that way.  Had it done so, an issue may have arisen as to whether the DFAT cables were capable, on a rational consideration, of sustaining a conclusion to that effect.  Rather, I think that RRT accepted on the basis of the applicant’s past mistreatment during detention that she may have a well-founded fear of being subjected to detention in the foreseeable future as she has been in the past, but concluded that this did not give rise to a well-founded fear of being persecuted for a convention reason, because detention as such does not satisfy that description, and because mistreatment during detention is the product of indiscriminate cruelty.  The improved conditions in Jaffna, and the fact that the applicant’s profile is not such as to bring her to the attention of the authorities may lessen the likelihood of the applicant being detained or mistreated, but those matters are not sufficient to negate “a real chance” of detention or mistreatment.  In other words the Tribunal’s views, expressed in Paramanathan, that mistreatment in detention is not persecution for a convention reason continued to play a part in its ultimate conclusion.

A failure by RRT to consider whether the mistreatment that the applicant endured at the hands of the Sri Lankan army might have been motivated (in part) by the fact that she is a Tamil, or was suspected of being a member or supporter of LTTE.

Claims by persons of Tamil ethnicity to refugee status have been considered by the Court in Paramanathan v Minister for Immigration & Multicultural Affairs (Davies J, 15 May 1998 – unreported), Sivarasa v Minister for Immigration & Multicultural Affairs (Burchett J, 11 June 1998 – unreported), Nagaratnam v Minister for Immigration & Multicultural Affairs (Tamberlin J, 17 August 1998 – unreported) and Perampalam v Minister for Immigration & Multicultural Affairs (Hill J, 23 October 1998 – unreported).

Whether a person has a well-founded fear of being persecuted for reasons of race, or political opinion is a factual question.  Here RRT has accepted that the applicant on at least one, and possibly two occasions, was mistreated by the Sri Lankan armed forces in the course of their seeking information about the applicant’s knowledge of or links with LTTE.

RRT does not make an explicit finding as to the nature of the mistreatment to which the applicant was subjected, but it is implicit in its reasons for decision that it was the mistreatment to which the applicant claimed she had been exposed, as summarised on p 5 of RRT’s reasons (and extracted at p 2 above), except for the claimed rape.

That mistreatment cannot be characterised as “appropriate and adapted to achieving some legitimate object of the country of the refugee” (Applicant ‘A’ v Minister for Immigration & Multicultural Affairs (1997) 142 ALR 331, 354 per McHugh J) even though her detention and questioning could properly be so described.

That throws up the question as to whether the security forces who inflicted that mistreatment did so because the applicant was a Tamil, or was suspected of being associated with LTTE.

The motivation for the infliction of the harm is one of the issues in the case.  And as Tamberlin J said in Nagaratnam at p 9:

“In refugee cases, the circumstances of each particular applicant must always be closely considered.  It is not appropriate to attempt to delineate any general principles which are transferable without close examination from one case to another.”

In my opinion, there is force in the applicant’s submission that RRT did not ask the question in the context of the facts of this case: what motivated those who inflicted inappropriate harm on the applicant?  Was it because she was a Tamil, or suspected of being in association with LTTE?  Instead it referred to the decision of RRT and of Davies J in Paramanathan as if those decisions established some principle of general application determinative of the present case.

Of course, those decisions could not be determinative of the factual issues in the present case.  In particular, adoption of the decision of RRT in Paramanathan was likely to lead into error, because of uncertainties inherent in the tag or label, “indiscriminate cruelty”.  If that means that all Sri Lankans are liable to the same treatment at the hands of the armed forces, regardless of race or suspected political association or other convention reason then it is unobjectionable.  If, however, (as the discussion on p 9 suggests) it is indiscriminate in the sense that it is cruelty which is not the product of government policy then it begs the question as to the motivation of those who inflicted the harm, and whether in the circumstances of the particular case, the infliction of it constitutes persecution for a convention reason.

Accordingly, in my opinion, RRT failed to address the issue posed for its consideration, or alternatively wrongly proceeded on the basis that cruelty which is not the product of government policy cannot be persecution for a convention reason, irrespective of the motives of those who inflict the harm.  On either basis its decision involves an error of law.

It is therefore unnecessary to address the alternative submission that RRT failed to comply with s 430 in as much as it failed to reveal the reasoning process that led it to the conclusion that the mistreatment of the applicant was indiscriminate cruelty.

Failure to act fairly in relying upon undisclosed cables

It is contended that the failure to draw the two cables to which I have referred to the applicant’s attention, and to afford her the opportunity of responding to them, constituted a failure to comply with the procedure required by s 420 to act justly, fairly and according to substantial justice and the merits of the case.  Eshetu v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 300.

It is clear that the applicant’s adviser knew that a critical issue for consideration by RRT was the treatment which the applicant could expect to receive from the army and other authorities if she should return to the north of Sri Lanka.  The extent to which there had been improvement in the treatment of Tamil civilians by the government authorities since December 1995 was a matter of significance in the decision of the previously constituted RRT (whose decision was set aside by consent) and which was addressed by the appellant’s adviser in his submissions to the RRT.

If the cables in question were no more than an updating of information already addressed then, in my view, non disclosure of them to the applicant would not give rise to a breach of s 420.  The cable of 22 January 1998 is of that character.  The cable of 19 May 1998 is of a different quality.  It conveyed a specific piece of information of particular application to the applicant's home area.

On one view of the cable it was, perhaps, capable of supporting the view that there had been an improvement in human rights conditions in Jaffna in general, and in the applicant’s home district in particular, in recent years.  But on another view it could support a conclusion that such improvements as had occurred were imperilled by the LTTE killing of Brigadier Wijeratne, who had played a significant role in securing the improvement in human rights conditions which had been achieved.

In my opinion, RRT’s reliance on the cable as supporting the continued improvement in human rights conditions especially in the applicant’s home district, without disclosing the cable to the applicant, and affording her an opportunity of responding to it, constituted a failure to act justly, fairly and according to substantial justice and merits of the case, such as to result in a failure to comply with s 420.

In Komathi David v Minister for Immigration & Multicultural Affairs (Wilcox J, 12 October 1995 – unreported) RRT relied on information it had obtained about significant events in Sri Lanka that had occurred after its hearing.  The Court considered the views expressed in Kioa v West and held that procedural fairness required that the applicant be given “the opportunity to point out any errors in the information ... received and to state any additional relevant facts”.

In Logenthiran v Minister for Immigration & Multicultural Affairs (Davies J, 15 May 1998 – unreported) the Court came to the conclusion on the basis of the facts there under consideration that there was no want of fairness in non disclosure of material which was not “of any special significance but rather formed part of the general body of material in which different people have expressed different views”.

For the reasons I have given, the material contained in the cable of 19 May 1998 was not of that type.

In my opinion, this ground on which review is sought is made out.

Misinterpretation or misapplication of the Convention by confining consideration to Jaffna

The applicant contended that RRT only dealt with whether the applicant would be safe in Jaffna.  It failed to consider whether she could in fact return to Jaffna without being exposed to the risk of convention related persecution is, for example, Columbo.

I do not think that this ground on which review is sought is made out.  The cable of 13 May 1997 referred to at p 10 of RRT’s reasons (which was disclosed) deals with access to Jaffna.  On a fair reading of RRT’s decision as a whole I think that RRT addressed the question of whether the applicant could return to, and remain in Jaffna, and came to the conclusion that she could do so without a well-founded fear of persecution for a convention reason.

Misinterpretation or misapplication by failing to speculate

It was submitted that RRT erred by relying on the position prior to the death of Brigadier Wijeratne, described in the cable, without speculating, in the sense of predicting or assessing the future, how his death might affect the situation.

In my view, for the reasons already given, RRT’s error was of a different character.  It relied upon the cable as supporting the continued improvement in human rights conditions in the applicant’s home district when it was capable of leading to a different conclusion without disclosing the cable to the applicant, and giving her an opportunity of responding to it.

Failure to comply with s 430 in relation to the applicant’s profile

RRT found that the applicant’s profile is not such as to bring her to the attention of the authorities for more than routine security checks.  It was submitted that RRT did not refer to the evidence or information on which it relied as required by s 430, nor did it reveal what kind of profile would be sufficient.

Muralidharan v Minister for Immigration & Multicultural Affairs (1996) 62 FCR 402 deals with the nature of the requirement that RRT give reasons.  It is enough that the findings and reasons deal with the substantial issues on which the case turns.

In my opinion, RRT gave sufficient reasons for the conclusion which it reached in this regard.  It found that the applicant was no more than an unwilling assistant of LTTE when a schoolgirl.  For that reason she was unlikely to be of interest to the authorities.  There is no requirement that RRT should describe or define the type(s) of profile which might produce a different result.

Conclusion

For the reasons given, the decision of RRT should be set aside and the matter remitted to RRT for determination according to law.  The respondent should pay the applicant’s costs of the application.

Associate:

Dated: