FEDERAL COURT OF AUSTRALIA

Santhikumar v Minister for Immigration and Multicultural Affairs

[1999] FCA 1082

MIGRATION - application for judicial review of Refugee Review Tribunal decision refusing the grant of protection visas - applicants citizens of Sri Lanka - claim by applicant of feared persecution because the authorities believe he is associated with the LTTE - similar claim made by applicant's mother-in-law as well as an additional fear of persecution arising from past extortion demands - Tribunal concluded the applicant was not a credible witness - whether the Tribunal failed to speculate on whether the applicants faced a real chance of persecution - whether the Tribunal adequately considered independent evidence about the current situation for Tamils in Sri Lanka - whether the Tribunal properly characterised the motivation behind the extortion demands made on the applicant's mother-in-law - whether the Tribunal was entitled to conclude that the applicant's mother-in-law would be able to safely relocate within Sri Lanka.

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

SUBRAMANIAM SANTHIKUMAR & ORS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 1356 OF 1998

MOORE J

SYDNEY

12 AUGUST 1999

THE COURT ORDERS THAT:

1.         The application is dismissed with costs.

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

REASONS FOR JUDGMENT

1                     This is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 16 November 1998 by Subramaniam Santhikumar (“the applicant”) and members of his family.  The family members are Santhini Santhikumar, Sankavi Santhikumar and Sangavi Santhikumar, who are the applicant's wife and two daughters respectively, and Nesamany Kanagasabapathy, who is the applicant's mother-in-law.  The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”) refusing to grant the applicant, his family and his mother-in-law protection visas.  A criterion for the grant of such a visa is that an applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (“the Convention”): see s 36 of the Migration Act 1958 (Cth) (“the Act”).

2                     The applicant, his wife and eldest daughter are citizens of Sri Lanka who arrived in Australia in April 1994.  The second daughter was born in Australia.  The applicant's mother-in-law is also a citizen of Sri Lanka and arrived in Australia in September 1996.  The applicant applied to the Department of Immigration and Multicultural Affairs ("the Department") for a protection visa on 9 November 1995 and the applicant's mother-in-law applied for the same class of visa on 24 December 1996.  On 26 August 1997 a delegate of the Minister refused to grant the protection visas.  After considering the circumstances of the applicant (his wife and two daughters being included in his application by operation of item 1126 in Schedule 1 to the Migration Regulations) and the applicant's mother-in-law separately, the Tribunal affirmed the delegate’s decision.  Art 1A(2) of the Convention contains, for present purposes, the definition of refugee.  It provides:

… the term ‘refugee’ shall apply to any person who;

…

(2)               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 in being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it.

3                     The gravaman of the applicant's case before the Tribunal was that he feared persecution if returned to Sri Lanka because the authorities believe he is associated with the Liberation Tigers of Tamil Eelam ("LTTE").  The case of the applicant's mother-in-law similarly raised fear of persecution for reasons of perceived connections to the LTTE.  The Tribunal's treatment of claims of the applicant and the applicant’s mother-in-law will be considered separately.

The claims of the applicant

4                     The Tribunal's reasons detail the applicant's evidence given at each stage of the application process and can be summarised as follows.  In a statutory declaration accompanying his application to the Department the applicant said that he was a Sri Lankan Tamil from the north of Sri Lanka.  He completed his secondary education on the Jaffna Peninsula and then studied at the University of Peradeniya near Kandy in the Central Province of Sri Lanka.  The applicant said that his younger brother had been heavily involved with the LTTE but he, by contrast, had decided to honour his mother's wishes and go to university.  When the university closed for two months in 1985 the applicant returned home and helped the LTTE by keeping watch outside the army camp at Point Pedro.  In 1987, when trouble with the Sinhalese insurgent group Janatha Vimukthi Peramuna (JVP) began, the applicant and all other young men in his area were detained, marched to Point Pedro and kept for two days without food.  While some of the applicant's friends were detained beyond that time, the applicant was released.

5                     The applicant stated that at the time when the Indian Peace-Keeping Force ("IPKF") had been in Sri Lanka, he had been taken to an IPKF camp and beaten with plastic pipes.  On one occasion he was also detained for twelve hours at an IPKF checkpoint while travelling to visit his mother in another part of the country, but was not harmed.  The applicant graduated from university in February 1990 and was appointed to the permanent post of assistant lecturer in February 1991.  He was married in May 1990.  In June or July 1990 two of his Tamil colleagues disappeared.  In March 1991, the house where he and his wife had been living was stoned, and then two days' before he was due to leave for Tokyo to study for his masters degree, the applicant and two other Tamils were arrested because their National Identity Cards showed that they came from Point Pedro.  They were held overnight before the applicant's wife managed to obtain their release with the assistance of a justice of the peace.

6                     After completing his studies in Tokyo the applicant and his wife returned to Sri Lanka in September 1993.  In December 1993 the applicant was awarded a scholarship to study at Sydney University which he took up and he and his family left Sri Lanka in April 1994.  Between September and December 1994 the applicant published two pieces of writing in a particular internet site (the "Tamil Circle") which he had thought was read only by Tamils.  One article cast doubt on the capacity of Sri Lankan leader Chandrika Kumaratunga to bring peace to the area and the other article was an appeal to Tamils to forget their differences and support the LTTE.  The applicant did not keep copies of either article.  He said that he stopped posting articles and comments in Tamil Circle when he heard that some articles from there had been published in the Colombo Daily News.

7                     The applicant said that from October 1994 to May 1995 he and his family sublet a room in their flat to a Sinhalese woman they knew through Tamil friends.  The applicant openly discussed his views about the Sri Lankan situation with the woman, although he knew that she had a brother in army intelligence.  Relations with the woman became difficult after unrest again arose in Sri Lanka and eventually the applicant and his wife asked the woman to leave.  The applicant said that the woman complained to his wife that he was the problem because he was a Tiger and hated the Sinhalese.  The applicant said that although he did not know whether this woman had told her brother about his opinions, he had to assume the worst, and it was no longer safe for any Tamils in Sri Lanka.

8                     At the Departmental interview the applicant said that at the time he had come to Australia he could have applied successfully to migrate on the basis of his skills.  He had had no intention of applying for refugee status, as he had a university position in Sri Lanka.  It was only after he arrived and various incidents had occurred that he changed his thinking and decided to apply for refugee status.  The Departmental officer put it to the applicant that it must have been obvious that anyone could have read what he posted on the internet.  The applicant replied that he had published the articles through email to which only certain people had access.  The Departmental officer asked the applicant why he had written a letter supporting the LTTE directly.  The applicant responded that he had not supported the LTTE directly, but rather had written in support of Tamils because he believed that Tamils could only obtain respect in a separate nation in Sri Lanka.

9                     The applicant told the Departmental officer that the last information he received was that if he returned to Sri Lanka he would be arrested and tortured by the Sri Lankan army and police and would be killed.  He said that he had been told this in letters from his landlord and friends.  The applicant said that the army and police had gone to his friend's house, found some books of his, and had asked questions about him.  He also said that he had two cassette tapes of songs supporting the Tigers which he had obtained during the period of the ceasefire between the Government and the LTTE in 1990.  The applicant produced copies and translations of letters from his landlord and friends to support these claims.

10                  The applicant's representative made submissions to the Department in March 1997 seeking to clarify certain matters raised at the Departmental interview.  He said that the applicant had not posted the articles he had referred to on the internet, but rather had sent them to an email discussion group with a limited number of subscribers.  It came to the applicant's knowledge later that Sinhalese had infiltrated the group using false Tamil names.  He said that had he known of this, he would have avoided writing to the discussion group.  The applicant stated that he had not considered it dangerous to discuss his political opinions with the Sinhalese woman to whom he had sublet a room because she had been well educated and had many Tamil friends.  In relation to the cassette tapes, the applicant said he had purchased the LTTE songs because he liked the music, and not because they were in support of the LTTE. 

11                  The applicant's representative submitted that the security forces in Sri Lanka were looking for anyone with any connection to the LTTE and if they found such a connection there was a high likelihood of the person in question being detained and tortured.  Evidence was produced which referred to police torturing detainees in a significant number of cases.  The representative further submitted that the security forces were unable to distinguish LTTE cadres from ordinary Tamils so that Tamils were frequently treated as responsible for LTTE atrocities. 

12                  At the hearing before the Tribunal the applicant was asked what involvement he had had with the LTTE while he had been living on the Jaffna Peninsula.  He responded that many of his friends were involved in the LTTE and he had sometimes been asked to observe the movements of the army.  He had not otherwise been directly involved in any activities.  The applicant said that he had supported the cause the LTTE was fighting for, but had argued with some of his friends because he believed that some activities of the LTTE were wrong and unacceptable.  However he had participated in processions, and while in Australia had been involved in protest marches and hunger strikes against the Sri Lankan government.  The applicant said that while studying in Japan he had written a letter to the Japanese government arguing that funds given to the Sri Lankan government for development were being used to buy weapons.  He said that he had not had any contact with the LTTE while in Australia.

13                  When asked to clarify why he had sent an email to a Tamil discussion group appealing to Tamils to support the LTTE, the applicant said that he had not been asking Tamils to support the LTTE, but rather had argued that the struggle for Tamils should not be given up on the assumption that Chadrika Kumaratunga would solve the problems.  He had argued that the struggle of the Tamils should not be abandoned and that only the LTTE would be able to carry on the struggle.  It was not a simple call to Tamils to support the LTTE.  The applicant also told the Tribunal that two of the lecturers he had worked with at university had been arrested and interrogated and the authorities had learned that he had connections with these two persons.  The government had said these two people were Tigers and because the applicant had been linked to them they had accused him of being a Tiger as well.  The applicant said that this had occurred in July 1996 but that he had heard about it later.

14                  The Tribunal asked the applicant why he had not referred to the troubles arising from the arrest of his two friends at the Departmental interview.  The applicant responded that he had not known from the letter he had received why the authorities were looking for him, and had assumed it was because the cassette tapes had been found.  He had only found out about the arrest of the two people very recently, through a telephone call from a friend in Canada.  He said that he assumed it was a combination of the arrest of these persons, the articles he had submitted to the discussion group, and the views of the Sinhalese woman who had been living with them.  The applicant also said the letter written to him by his landlady in Peradeniya stated that the police and army were still interested in him.  The letter, dated February 1998, stated that a police inspector had come to her home to ask where the applicant was and whether she was in contact with him, and that the inspector threatened to arrest them if they did not notify the police in the event the applicant returned to Kandy.

15                  The applicant maintained that the army and police were presently searching for him and that according to one witness, every member of staff at his university had branded him a Tiger.  He said the army had enough proof to accuse him of being a Tiger because they had found the cassettes.  He said that the LTTE was a banned organisation and someone found in possession of one of their cassettes would be punished severely.  Now that there was a law passed to this effect, the applicant believed he would definitely be tortured or killed.  The two people he knew that had been arrested had not yet been released and he believed he would be in the same position.

16                  The applicant asked that the Tribunal take evidence from a witness, Mr Kanagaratnam.  The witness said that he had attended the University of Peradeniya between February 1992 and January 1998.  He said he did not know the applicant prior to meeting him in Australia, however in his final year of university had heard that the authorities were searching for someone of the applicant's name.  A close friend of the witness told him he had been questioned about this.  The witness said he had remembered the applicant's name because he had never been involved in something like that before and it was a big issue for him.  The witness rejected the Tribunal's suggestion that this story was untrue and concocted to support the applicant's case.

17                  The Tribunal put it to the applicant that his evidence regarding the arrest of his two friends was a fabrication intended to strengthen his application for refugee status.  The Tribunal also suggested that the picture the applicant had portrayed of his situation in Sri Lanka did not suggest that he would face persecution on his return and that at the time he left he had not had a well-founded fear of being persecuted on his return.  The applicant agreed that he had not had particular fears, only a general fear.

18                  The applicant’s representative submitted a further written submission after the Tribunal hearing.  In that document the applicant stated that although he had previously said that he had not been physically harmed or mistreated in Sri Lanka apart from the incident where he had been beaten with plastic pipes by the IPKF, he had since learned of how the United Nations and other human rights organisations classified mistreatment, harassment and torture and wished to submit that he had in fact been mistreated, harmed and harassed whenever he had been arrested.

19                  In relation to the suggestion that the applicant's claims relating to events which had occurred since he had been in Australia had been fabricated to support his application, the applicant told the Tribunal that if he had wanted to make false claims he would have said that he had been in army custody for a long time and that he had been tortured or forcibly recruited by the LTTE.  The applicant also said that when he made his original application he had not been aware that the police had found his cassette tapes containing songs in support of the LTTE.  He said that it was wrong to assume that the police would have known he was in Australia, as they had been searching for him at the houses of his former landlady and of senior lecturers.

20                  The applicant’s representative made a number of further submissions in writing on 22 October 1998.  These included that the fact the applicant came from the town of Valvedditturai, the well known birthplace of the leader of the LTTE, raised a claim of persecution by reason of membership of a particular social group.  The representative referred to a report from August 1996 which said that soldiers had killed a student at a temple in Point Pedro because his identity card showed that he came from Valvedditturai.  The applicant’s representative submitted generally that the LTTE had evinced a policy of exacerbating and inflaming ethnic tensions and in this context a genuine fear of the LTTE pervaded Colombo.  The sense of fear felt by Tamils in Kandy in particular, after the bombing of the Temple of the Tooth by the LTTE in January 1998, would make Kandy and its environs unsafe for Tamils for some time to come.  There was a general danger to Tamils in Sri Lanka and a particular danger to Tamils known or suspected to hold pro-LTTE opinions.

The claims of the applicant's mother-in-law

21                  In a statutory declaration of February 1997 the applicant's mother-in-law said that she was a Sri Lankan Tamil born on the Jaffna Peninsula.  Her one daughter was the applicant's wife.  Her one son had been accused of being a member of the LTTE and had been taken into custody by the Sri Lankan army in August 1984.  Her husband, who died in 1985, had paid a bribe of 20,000 rupees for his release and they had sent him to France to avoid any further trouble.  She said that even after he had left the country the army still came to the house looking for him.

22                  The applicant's mother-in-law said that she had left her home in Tellippalai in 1987 because of the fighting, and when she returned the house had been badly damaged.  She repaired what she could and continued to live there.  She said that IPKF soldiers had come to the house and threatened her, hit her and stolen her jewellery.  In 1990 her house had been completely destroyed by shelling and she had to move to a town ten miles away.  She said she had been forced to pay 10,000 rupees to the LTTE.  In July 1995 she fled to Achchuveli when the Sri Lankan army started to advance towards Jaffna.  In September 1995 the army captured Achchuveli and she had remained there.  Soldiers came to her house and accused her of sheltering LTTE guerillas.  They saw a picture of her son and questioned her about whether he was a Tiger.  She said they had grabbed her by the throat and threatened her until she fell unconscious, and then ransacked and looted her house.

23                  The applicant's mother-in-law said that soldiers came to her house on several further occasions and accused her of supporting the LTTE and her son of being a Tamil Tiger (the Tribunal's reasons note that at the Departmental interview she had said that the soldiers pulled her hair and scolded her).  She said that at the end of September 1995 she fled to another part of Sri Lanka with the help of her neighbours.  She travelled to other parts of the country before finding refuge at a school in Vavuniya.  From there she contacted her daughter and the applicant in Australia but they were unable to help her, so she contacted her son in France.  Her son advised her to travel to India so that he could arrange a flight to France.  The applicant's mother-in-law travelled to Colombo where she paid an agent 100,000 rupees to arrange her flight to Madras.  When she arrived in Madras she discovered that her son had been unable to arrange her flight to France and she returned to Sri Lanka six days later.

24                  When the applicant's mother-in-law returned to Sri Lanka she was unable to travel to Jaffna because of the fighting.  She had been unable to stay in Colombo because she did not know anyone and did not speak Sinhalese.  She went to a refugee camp and said she was in fear of her life arising from army retaliation over an LTTE attack on an army base.  She telephoned her daughter in Australia who said that she would try to arrange for her to get out of Sri Lanka.   The applicant's mother-in-law then fled to Colombo where she stayed with a university friend of her daughter and with her help obtained a visa to travel to Australia.  She paid 50,000 rupees to an agent to arrange this and arrived in Australia in September 1996.

25                  The applicant's mother-in-law told the Tribunal she feared she would continue to be harassed by the Sri Lankan army if she were to return to Sri Lanka.  She also feared the LTTE would harass her for money because her children were overseas and were considered to be rich.  She could not return because she was weak and sick and feared for her life. 

26                  At the Tribunal hearing the applicant's mother-in-law was asked whether she had difficulty passing through the Government checkpoint at Vavuniya when she had travelled to Colombo in September 1995.  She responded that people had to queue at checkpoints and were asked questions about where they were going.  After the checking, the army had taken them to a refugee camp, housed in a school.  The applicant's mother-in-law told the Tribunal that she had not stayed in India after she had travelled there in October 1995 because she did not know anyone and the agent she travelled with had told her that she could not remain there. 

27                  When asked why she had not remained in a Government-controlled area on her return from India, she said that she had been afraid to remain in Vavuniya because her entire family had been branded supporters of the LTTE and she had feared someone might inform on her.  The Tribunal put to the applicant's mother-in-law that the fact she had been able to pass through the Government checkpoint in both 1995 and 1996 suggested that the Sri Lankan authorities did not see her as a supporter of the LTTE.  When asked whether any of the pro-Government militant Tamil groups had extorted money from her in Colombo in 1996, she replied that one group had asked for 100,000 rupees but as she did not have this much she had paid them 25,000 rupees.

28                  The applicant's mother-in-law told the Tribunal that she could not live in Colombo because she did not speak Sinhalese or English.  When the Tribunal put to her that there were hundreds of thousands of Tamils in Colombo, she responded that she did not have any relatives and did not know anyone in Colombo.  She said that there was always "checking" and that the police arrested everyone.  The Tribunal told her that although checking was a nuisance, it did not amount to persecution.  The Tribunal also put to her that information before the Tribunal stated that only a small percentage of people arrested were detained and the vast majority were released after 24 to 48 hours.  The Tribunal suggested that there was only a remote chance that she would be regarded as a security threat in Colombo.  She responded that if someone informed on her, saying that she was a supporter of the LTTE, she would be arrested and kept in detention.  She said that she had undergone a lot of suffering in 1995, which the Tribunal accepted.  She said that she could not return to Sri Lanka as her son had been gone for 14 years and her son-in-law was in trouble.

The Tribunal's conclusions

29                  The Tribunal's reasons dealt extensively with background information on the political situation in Sri Lanka, detailing in particular the relationship between the Government and the LTTE.  The Tribunal also referred to Australian Department of Foreign Affairs information on the security situation in Colombo as at February 1998.  The Tribunal then turned to consider the claims of the applicant and the applicant's mother-in-law.

30                  The Tribunal did not find the applicant a credible witness and considered that he would say whatever was required to advantage his application, without regard to the truth.  The Tribunal concluded that the applicant had frequently adjusted his evidence to overcome any doubts raised, particularly in relation to his account of the arrest of the two persons in July 1996 and his ownership of the cassettes containing LTTE songs.  The Tribunal considered the applicant's failure to mention at the Departmental interview the alleged telephone call he received from a friend in Canada indicated that the evidence was fabricated to support his claims about why the Sri Lankan authorities were searching for him in Kandy.  The evidence of the witness who appeared on behalf of the applicant to corroborate this was viewed by the Tribunal as implausible.

31                  The Tribunal stated that it could accept some of the applicant's claims if he had committed a crime of some notoriety, such as masterminding one of the LTTE’s attacks.  However the applicant’s claims were that he was accused of possessing two cassette tapes containing LTTE songs and possibly also of having links with two people who he said the authorities had accused of being involved with the LTTE.  The Tribunal found the evidence that this was commonly talked about at the university and that the authorities were searching for the applicant to be implausible.  The Tribunal rejected the witness’s testimony to this effect as not true.

32                  The Tribunal also did not accept that the applicant had ever been sought by the authorities in Sri Lanka since the time he left for Australia in 1994.  The Tribunal viewed the evidence about the telephone call received from Canada as a fabrication, other supporting evidence as tailored to suit his application, and stated that the applicant could not be accepted as a witness of truth.  Having regard to these findings on credibility, the Tribunal did not accept the applicant's evidence about the article he claimed to have sent to a Tamil discussion group on the internet.  The applicant’s evidence had been inconsistent concerning the content of this article, and in any event the Tribunal did not accept that it would have attracted the attention of authorities in Sri Lanka.  The Tribunal likewise did not accept that the applicant had attracted the attention of the authorities because he had discussed his political opinions with the Sinhalese woman whose brother was involved in army intelligence.  The Tribunal rejected the assertion that the Sinhalese woman had accused him of being a Tiger, or that she had a brother in army intelligence.  The Tribunal also did not accept that the applicant had participated in protest marches or hunger strikes against the Sri Lankan Government while in Australia, or that, in any event, such protests had attracted the adverse attention of authorities in Sri Lanka.

33                  The Tribunal accepted that the applicant may have been detained on three occasions by the IPKF between 1987 and 1990 and that on the second of these occasions he may have been beaten with plastic pipes.  However as the IPKF left Sri Lanka in 1990, it no longer presented a threat to the applicant.  In relation to the applicant clarifying his evidence about whether he had in fact been mistreated, harmed or harassed on the occasions he had been arrested, the Tribunal concluded that this represented another example of the applicant altering his evidence in a way perceived to be to his advantage.  The Tribunal noted that the applicant had the assistance of legal representation in preparing his application and therefore did not accept that he was under any misapprehension about whether he should mention any harassment, mistreatment or physical harm which he might have experienced while he was in detention.

34                  The Tribunal noted that the applicant had conceded at the hearing that he had not had particular fears at the time he left Sri Lanka, only a general fear arising from the continuing conflict in Sri Lanka.  His claim therefore was that he had become a refugee sur place by reason of events occurring since he left Sri Lanka.  To address this possibility, the Tribunal considered the current situation in Kandy, on the assumption that this would be where the applicant would return to live in Sri Lanka.  The applicant's representative had submitted that the situation for Tamils in Kandy had become worse since the LTTE bombing of the Temple of the Tooth in January 1998.  The Tribunal noted however that while there had been instances of mob violence in Kandy in the wake of the bombing, there was no evidence to suggest that this mob violence was encouraged or condoned by the Sri Lankan Government.  The Tribunal further observed that it was not aware of any other incidents of racially-motivated violence in Kandy since January 1998.  The Tribunal stated that it was satisfied on the evidence that the Government of Sri Lanka has provided in the past and will continue to provide a level of protection to the Tamil community in Kandy sufficient to remove a real chance of persecution by racially motivated mobs.

35                  In relation to the submission that the applicant has a well-founded fear of persecution by reason of his membership of the "particular social group" of persons born in Valvedditturai, the Tribunal said, assuming it was a group for Convention purposes, the evidence did not establish that members of such a group are singled out for persecution by reason of their membership of that group.  The applicant's representative had only provided evidence of a single incident where a student with an identity card indicating he was born in Valvedditturai was killed by soldiers at a temple in Point Pedro.  The Tribunal stated that it was not possible to “draw a general rule” from this incident, and the applicant himself had not suggested that he had been detained at any time in the past because his identity card indicated he was born in Valvedditturai.  The Tribunal concluded that it did not accept that one press item referred to by the applicant's representative supported the view that all Tamils born in Valvedditturai are imputed with pro-LTTE political opinions simply because they share a birthplace with the leader of the LTTE.

36                  The Tribunal also did not accept that all Tamils in Sri Lanka are in danger of being persecuted.  This view was said to be supported by the applicant's statutory declaration detailing his experience in Sri Lanka before he left to come to Australia, which the Tribunal described as isolated incidents of racial abuse not sufficiently serious to constitute persecution.  The Tribunal reiterated its view that the applicant's fear of further detention could be qualified by information which suggested that the vast majority of those detained at checkpoints were released after 24 to 48 hours.  Although the applicant had asserted that this information was Sri Lankan Government propaganda, the Tribunal stated that to the extent of any inconsistency it preferred the official information.  The Tribunal also said that it considered detention of Tamils in the context of security measures applying in the south of Sri Lanka as conduct appropriately designed to achieve some legitimate end of government policy, as discussed by McHugh J in "Applicant A" v Minister for Immigration & Multicultural Affairs (1997) 190 CLR 225.  The Tribunal concluded that the applicant did not have a well-founded fear of being persecuted for a Convention reason were he to return to Sri Lanka in the foreseeable future, nor was he a refugee sur place as a result of events occurring in Sri Lanka in the time since he had been in Australia.

37                  In relation to the claims of the applicant's mother-in-law, the Tribunal accepted that she may have been threatened and mistreated by both the Sri Lankan army and the IPKF while she was living on the Jaffna Peninsula.  However because the applicant's mother-in-law is over sixty years of age, the Tribunal rejected the suggestion that she could be regarded by the Sri Lankan authorities as a security threat.  The Tribunal considered that the fact she was able to pass through security checkpoints without incident in both September 1995 and August 1996 suggested that she was not of interest to the authorities.  There was nothing in evidence before the Tribunal to suggest that the applicant's mother-in-law had ever been sought by the security forces.  The Tribunal rejected the suggestion that the applicant's mother-in-law feared someone might inform on her because her whole family had been branded LTTE supporters, as there was nothing in the evidence which indicated that the applicant's wife had been branded an LTTE supporter and the applicant's own claims to this effect had already been rejected by the Tribunal.  The Tribunal considered it reasonable that the applicant's mother-in-law would continue to live with the applicant and his family on her return to Sri Lanka and if for some reason this was not possible, it was reasonable to expect that she could relocate to the relative safety of Colombo.

38                  The Tribunal accepted that the applicant's mother-in-law may have faced an extortion demand from a pro-Government militant Tamil group, but considered that this was not because of her race or imputed political opinion but because, as she herself said, her children lived overseas and were considered to be rich.  Any such extortion demands she might face upon return to Sri Lanka would also not be motivated by a Convention reason, but rather because of a perception that she has the money to meet such demands.  The Tribunal did not accept that the applicant's mother-in-law held a well-founded fear of persecution for a Convention reason.

Submissions in the Court

39                  The applicant was unrepresented in the proceedings in the Court.  In his application for judicial review dated 14 December 1998 he contended that he was aggrieved by the decision of the Tribunal on a number of bases.  For ease of reference I will refer when I can only to the applicant and his circumstances and not his family and mother-in-law.  The applicant’s contentions were that the Tribunal failed to follow procedures established under the Act, the Tribunal erred in not considering the change in circumstances since the commencement of renewed hostilities between Sri Lankan Government forces and the LTTE since 1995, and the Tribunal erred in failing to determine the applicant’s refugee status as at the date of application and with reference to more recent independent evidence available to it.  The application also asserted that the Tribunal failed to consider separately and distinctly the claims of the applicant's mother-in-law, the Tribunal erred by failing to speculate on whether there was a real chance of persecution if the applicant were returned to Sri Lanka arising from his departure from Kandy, his family background and his political opinion, and the Tribunal erred in concluding that the applicant did not have a well-founded fear of persecution.

40                  In an outline of submissions filed 2 March 1999 the applicant sought to elaborate on these contentions.  In relation to the Tribunal's alleged error of law, the applicant essentially repeated the grounds of review set out in the application.  As to the ground that the Tribunal failed to make findings on material facts, the applicant submitted that the Tribunal failed to make a clear, fair and effective decision, and erred in formulating and ventilating preliminary adverse views about the applicants and in rejecting every one of their claims.  The Tribunal failed to sufficiently explore the facts and relied only on official information, and erred in foreclosing "reasonable speculation" on the chance of persecution emerging from the applicants' claims and the material before the Tribunal.  Further, the Tribunal misdirected itself by stating that retaliation after the bombing incident in Kandy was not racially motivated. 

41                  The applicant also submitted that the Tribunal was referred to independent evidence current at 1998 which suggested that the applicant’s chance of persecution had increased since departing Sri Lanka.  It was suggested that the effect of this independent evidence was an increased likelihood of persecution for reason of political opinion imputed from involvement in assisting or supporting the LTTE.  The applicant submitted that this was a material fact which the Tribunal failed to consider, and that overall the conclusions of the Tribunal were inconsistent with the overwhelming body of evidence.  The applicant also submitted that the Tribunal failed to afford substantial justice pursuant to s 420(2)(b), however this claim does not give rise to a ground of review: see Eshetu v Minister for Immigration & Multicultural Affairs (1999) 162 ALR 577.

42                  In written submissions filed 8 April 1999, counsel for the Minister summarised the claims of the applicant as detailed in the Tribunal's reasons and then submitted that the Tribunal found the applicant not to be a credible witness and this approach was not in error. The Tribunal pointed to inconsistent evidence, failure to raise claims at the earliest opportunity, implausibility, exaggeration and inconsistency with independent evidence as the basis of its findings on credit.  These issues were matters rationally probative to the question of credit and as such the Tribunal's approach was similar to that endorsed by the Full Federal Court in Kopalapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 1126.

43                  In response to the applicant’s submission that the Tribunal failed to have regard to evidence of the current situation in Sri Lanka, counsel for the Minister submitted that the Tribunal had made a comprehensive summary of independent evidence about the situation in Sri Lanka, and the material relied upon was current to October 1998.  There was thus no substance to this claim.  On the submission that the Tribunal failed to give reasons and decide all issues, counsel submitted that the Tribunal's decision dealt comprehensively and carefully with each of the applicant's claims, and there was no substance to this ground.

44                  The applicant lodged further submissions before the hearing, in reply to the submissions of counsel for the Minister.  The applicant took issue with several details referred to by counsel for the Minister in his summary of the Tribunal's decision, and sought to clarify a number of these facts.  The applicant then sought to answer the submissions of counsel for the Minister.  A number of these submissions do not relate to the grounds of review identified in the Act and I do not repeat them.

45                  On the issue of credibility, the applicant distinguished the conduct of the Tribunal in his case with that discussed in Kopalapillai (supra).  The applicant submitted that the Tribunal took a wrong approach to credibility issues that was not open on the material before it or on the evidence as clarified by him.  The Tribunal's decision lacked rational grounds and Kopalapillai should be distinguished.

46                  On the issue of change of circumstances in Sri Lanka and the Tribunal's alleged failure to have regard to current evidence, the applicant submitted that there was not sufficient material to justify the Tribunal's conclusion that there had been significant changes in Sri Lanka.  The applicant repeated the contention that the Tribunal failed to give reasons and decide all issues as required by s 430.  This included the submission that the Tribunal failed to consider the question of whether there was a causal connection between the applicant’s experiences and fear of being returned to Sri Lanka and his Tamil ethnicity and/or perceived sympathy for the LTTE.  The Tribunal failed to recognise that the mistreatment, torture, detention and inhuman and degrading punishment aimed at Tamils in Sri Lanka is not a legitimate activity of the state but rather "indiscriminate cruelty" and a "generalised failure" of the government to adhere to basic standards of human rights.  The applicant also submitted that the Tribunal failed to treat some of its information sources with caution, as such sources are linked to governments, are influenced by the need to maintain cordial relations between governments, and may be in conflict with the provision of accurate and impartial information about human rights in a country like Sri Lanka.

47                  At the hearing, neither party significantly supplemented the written submissions already filed.  However, the applicant did file further submissions after the hearing in response to some matters raised by counsel for the Minister at the hearing.  The central submission related to the extortion demand made on the applicant's mother-in-law and its characterisation by the Tribunal as being related to her ability to pay rather than a Convention related ground.  The applicant submitted that the facts of Perampalam v Minister for Immigration & Multicultural Affairs (1999) 84 FCR 274 were identical to the facts of his mother-in-law's situation as, like Perampalam, (supra) extortion had been directed at the applicant's mother-in-law because of her membership of the Tamil race.  The applicant also submitted that his mother-in-law feared mistreatment and persecution because of her involvement with her son, son-in-law and daughter and as an elderly Tamil woman who feared mistreatment, torture and killing as a Tamil perceived to be an LTTE sympathiser or supporter, regardless of age or sex.  The fear of the applicant's mother-in-law was also related to her status as a Tamil returning from abroad, who are regarded as LTTE sympathisers and face a real chance of persecution and human rights abuses by Sri Lankan armed forces and the police.

48                  On the issue of credibility, the applicant submitted that the Tribunal failed to consider UNHCR guidelines which highlight the particular problems of proof faced by refugee claimants and recommend that applicants who are otherwise credible should, unless there are good reasons, be given the benefit of the doubt.  Its rejection of the applicant’s claims did not exhaust its obligation to consider the prospect that he might nevertheless be telling the truth in the context of fear of great harm.  The Tribunal should have considered overall whether there was a real chance of the applicants being persecuted for racial and imputed political opinion reasons, notwithstanding the rejection of their account.  The applicant submitted that the case of Pandari v Minister for Immigration & Multicultural Affairs [1998] FCA 1698 should be distinguished and Singh v Minister for Immigration & Multicultural Affairs [1998] FCA 1366 should be applied.

49                  The applicant also submitted that the Tribunal failed to properly consider his claims about mistreatment in custody and stated that some of the vital submissions made at the Tribunal hearing about this fear of persecution were omitted from the Tribunal's decision.  The applicant submitted that this represented a failure to make a finding on a material question of fact and the reasoning of the Full Federal Court in Paramananthan (supra), where the Tribunal was criticised for failing to consider whether mistreatment of young Tamil males in detention was motivated by a Convention reason, should be followed.  The applicant submitted that the Tribunal had breached s 476(1)(a) of the Act by not by not making findings on material questions of fact as required by s 430(1)(c).

Conclusions

50                  The application for judicial review, when read with the various written submissions made by the applicants, raises a number of issues that might reasonably be viewed as involving various grounds of review identified in s 476.  Some of the grounds were expressly identified by reference to the provisions of s 476, others were not.  No point was taken by counsel for the Minister about the form of the application.  Accordingly I will endeavour to deal with each point of apparent substance raised by the applicant that can be legitimately raised having regard to the grounds identified in s 476.  Some, however, may be dealt with briefly.  An allegation of bias appears to be made: see s 476(1)(f).  However I discern no basis for concluding that the Tribunal was not open to persuasion notwithstanding the critical approach it took to the evidence of the applicant.  Nor is it apparent that there was any legal error of the type identified in s 476(1)(e) attending the Tribunal's decision concerning the time at which the position or status of the applicant was to be considered.  However a specific and related issue was raised, namely that the Tribunal failed to consider or at least deal in its reasons with material advanced by the applicant concerning the more contemporary situation in Sri Lanka.  This was said to establish a ground based on the combined operation of s 476(1)(a) and s 430.  However that material, which were articles concerning events in Kandy after the bombing of the Temple of Tooth in January 1998, was referred to by the Tribunal and later figured in the Tribunal's consideration of the extent to which the authorities were willing and able to control mob violence potentially threatening to the applicant engendered by the bombing.  The way the Tribunal dealt with this material does not disclose reviewable errror.

51                  The next issue was whether the Tribunal failed to engage in speculation so as to ascertain whether the applicant had a well founded fear of persecution.  Any such failure might establish an error of law of the type identified in s 476(1)(e).  However, plainly the Tribunal did consider what might happen if the applicant (that is, Mr Santhikumar) was to return to Sri Lanka and it did so against a background of having determined what of the applicant's account of his past experiences in Sri Lanka it accepted or rejected.  Its rejection of much of the applicant's account was in comparatively emphatic terms and I see no basis for concluding the Tribunal failed to engage in speculation on the basis that its findings concerning the applicant's past experiences and the rejection of much of his account of them were wrong: see Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719.

52                  The position of the applicant's mother-in-law is slightly different.  Two specific matters are identified as matters considered by the Tribunal in a way that may arguably manifest reviewable error.  The first concerns her capacity to relocate to Colombo given that she does not speak Singalese.  The second is that, as the Tribunal accepted, she may again be the subject of extortion demands were she to return to Sri Lanka.  As to the second matter, the Tribunal's conclusion that any demands that might be made would be because of her perceived wealth was a finding open to the Tribunal having regard to the evidence actually given by the applicant's mother-in-law.  It does not manifest legal error.  As to the first matter, the Tribunal took into account the fact that the applicant's mother-in-law could not speak Sinhalese but viewed the fact that Colombo had a large Tamil population as a countervailing consideration.  The Tribunal was entitled to do so.

53                  The applicants have not established any ground of judicial review.  I dismiss the application with costs.

Associate:

Dated:              12 August 1999