FEDERAL COURT OF AUSTRALIA

Satheeskumar v Minister for Immigration and Multicultural Affairs

[1999] FCA 1285

IMMIGRATION – Necessity for court “to attempt really to understand … what the Tribunal’s reasons were.”

Migration Act 1958 (Cth)

Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24, followed

Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247, distinguished

ARUMUGAM SATHEESKUMAR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 197 OF 1999

SYDNEY

WILCOX, TAMBERLIN AND MADGWICK JJ

23 AUGUST 1999

ON APPEAL FROM A SINGLE JUDGE OF THE COURT

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the respondent's costs of the appeal.

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

ON APPEAL FROM A SINGLE JUDGE OF THE COURT

REASONS FOR JUDGMENT

THE COURT:

1                     At the conclusion of argument in this matter, we ordered that the appeal be dismissed.  We indicated we would publish reasons at a later date.  These are our reasons.

Nature of proceedings

2                     The appellant, Arumugam Satheskumar, appeals from a decision of a judge of this Court dismissing his application for the limited form of judicial review available under the Migration Act 1958 (Cth) in respect of a decision of the Refugee Review Tribunal to refuse him a protection visa.

The appellant's claims

3                     The appellant is a Sri Lankan Tamil who arrived in Australia in August 1998.  He was then aged 26.  He comes from Vavuniya on the Jaffna Peninsula.

4                     At the airport, his account was that he feared PLOTE, an armed Tamil political organisation opposed to the LTTE (the well-known "Tamil Tigers"). The appellant said he particularly feared them because he had friends in TELO, another organisation opposed to the LTTE but a rival organisation to PLOTE.  He also claimed to have been harassed by the Sri Lankan Army, which would not let him go to Colombo.  Army personnel had detained him for a period of 3 days and kicked his backside and slapped his face.  The police too had detained him a few times.  On occasions, junior police officers had slapped his face. He claimed the Army and the police paid him attention because of suspicions that he was a member of the LTTE. The appellant said he had come to Australia to escape "all these problems".  He said that he had been told by the Sri Lankan person, who had organised his departure and, among other things, furnished him with false travel documents, to lie and say that he had been tortured; but he asserted he had told the interviewing officer the truth.

5                     On later occasions, the appellant adhered to the essence of this account.  The Refugee Review Tribunal member seized on various differences in the detail of his story and entirely disbelieved the claims that he feared the PLOTE.  Differences were apparent and the Tribunal had the advantage of seeing and hearing the appellant.  Despite possible misgivings, there is no role for the Court in such matters, absent error of law or statutorily required procedure. This was accepted before us by the appellant's solicitor, Mr Karp.

6                     On behalf of the appellant, a migration agent submitted to the Tribunal:

"The applicant has been persecuted by government authorities due to his race and imputed political opinion.  The applicant had been forced to hide in order to escape being arrested by the agent of the government.  This suggests that the applicant did in fact have an adverse political profile.

…

Young Tamils from Vavuniya often experience persecution for their race and political opinion.  There is a strong body of evidence which demonstrates that youths in this situation are experiencing persecution.  The evidence shows that government agents are involved in killing and torturing Tamils who they suspect; and this position has not been affected significantly since our client's departure.

According to the Amnesty international reports 1998, during the January -December 1997 period 'Thousands of Tamil people were arrested, including scores of possible prisoners of conscience.  Torture and ill treatment in army and police custody were widespread.  Approximately 80 Tamil civilians were reported to have 'disappeared'.  Three were killed in prison.  The LTTE, an armed opposition group, was responsible for grave human rights abuses, including the killing of two members of parliament'.

It further reported that 'they had repeatedly found evidence of 16,742 'disappearances' since 1 January 1988".

7                     Of relevance to this broader claim, the Tribunal said:

"If the Applicant were to return to Vavuniya he would be identified as a supporter of the LTTE and would face a real chance of persecution.  The Applicant's representative referred to the fact that, according to Amnesty International, 16,000 people had disappeared in Sri Lanka since 1 January 1988.  The majority of those who had disappeared had not in fact expressed a political opinion in favour of the LTTE.

…

I accept that as a young Tamil the Applicant may be arrested from time to time in the context of the current security situation in Sri Lanka where the Government is fighting a civil war with a Tamil insurgent group, the LTTE.  I consider that in this context arrests and security checks of the sort that the Applicant has described must be considered to be conduct 'appropriately designed to achieve some legitimate end of government policy'… While the mistreatment which the Applicant has described is no doubt inappropriate, I do not consider that occasional incidents of rough handling of the sort that the Applicant has described are so serious in themselves as to amount to 'persecution' for the purposes of the Convention… [T]he Convention necessarily contemplates that there is a real chance that the applicant will suffer some serious punishment or penalty or some significant detriment or disadvantage if he returns'.  There is nothing in the Applicant's evidence (setting aside what I have rejected above as fabrication) which would suggest that he has ever been seriously suspected by the Sri Lankan authorities of supporting the LTTE nor that there is a real chance that he will suffer some serious punishment or penalty by reason of his race or his imputed political opinion if he returns to Sri Lanka.  Moreover the Applicant himself states that the senior officers did not condone the mistreatment he received at the hands of their subordinates.  I do not accept, therefore, that the Applicant has a well-founded fear of being persecuted by reason of his race (Tamil) or his imputed political opinion (the suspicion that he supported the LTTE) if he returns to Sri Lanka now or in the reasonably foreseeable future."

The proceedings before the primary judge

8                     As is so often the case, the primary judge was faced with an inarticulate and unrepresented applicant.  His Honour said:

"It would be possible to dismiss this application on the ground that the applicant has not pointed to any of the limited grounds of review permitted to this Court by s 476 of the Migration Act 1958 (Cth).  However, having regard to the fact that the applicant does not have legal assistance, I have read the RRT's reasons for decision carefully and asked myself whether any of the permissible grounds of review appear to exist. In my opinion they do not."

After considering various factual matters, he added:

"The present issue is one of fact and degree and so is precisely the kind of issue the determination of which is a matter for the RRT not for this Court…  While I have sympathy for the applicant, the conclusion reached by the RRT does not appear, on the material before me, to be one that was not open to it."

The submissions on appeal

9                     The principal ground of appeal argued was that the Tribunal erred as to the interpretation of the applicable law (see  s 476(1)(e)) in the following way:

"The Tribunal erred in finding that the appellant's prospects of being persecuted for a Convention reason in the future [were] to be inferred solely from facts that it found to have existed in the past."

10                  The burden of the argument was that the Tribunal relied only on what it considered to be the relatively minor forms of harm to which the appellant had come in the past, and failed to consider whether there was a real chance that more serious harm, deserving to be called persecution, might befall him, for a Convention reason, in the future.

11                  In the course of the submissions, members of the Court questioned firstly whether a case had been asserted that all young Tamil men might have a well-founded fear of persecution for a Convention reason and, secondly whether the Tribunal failed to deal with or to give adequate reasons for the rejection of such a claim, and/or for the rejection of the alternative claim that was made (see para 6 above) and which was more or less independent of whether the appellant was a credible witness.

Reasoning from the past to the future

12                  There was material before the Tribunal, to which the Tribunal referred, which recounted the blood-stained history of the prolonged LTTE insurgency.  Among other things, the Tribunal accepted that:

"Pro-Government Tamil militant groups such as PLOTE and TELO, referred to by the Applicant, are used by the Sri Lankan security forces as informants.  They are particularly active in the refugee camps around Vavuniya and in the war zones in the North and the East where they have reportedly been involved in extrajudicial killings, illegal arrests, torture and extortion of civilians.  The Australian Department of Foreign Affairs and Trade has advised that because of the special relationship these groups have with the security forces, these activities are widely viewed as government-sanctioned…  The Department has advised that PLOTE is active in the Vavuniya area where its cadres work with security forces personnel at checkpoints:

Their role is to alert the security forces to people they believe are members of the LTTE. Unofficially, they also search, detain and question Tamil people they suspect of LTTE involvement."

And:

"The Applicant's representative referred to information from Amnesty International indicating that the PLOTE was operating unauthorised places of detention, in the North and East but also in Colombo.

…

I indicated to the Applicant's representative that I accepted what he had said about the human rights abuses committed by the PLOTE."

13                  More generally, the evidence established that the insurgency is continuing and that both sides have been guilty of atrocities.  In the nature of this conflict, it is likely that there will be sporadic exacerbations of the conflict and of governmental and pro-governmental disregard for the rights and freedoms of young Tamils.  However, the evidence did not point to a worsening trend in this regard.

14                  There is no reason to think that the Tribunal did not understand that it needed to assess the appellant's future prospects as well as his claims as to the past.  Accordingly, in the face of the evidence disclosed above, there was no reason, as a matter of law, why the Tribunal could not reason from the past to the future.  Any shortcoming in that regard merely goes to whether it would have been preferable for the Tribunal, as the tribunal of fact, to have reasoned differently.  Such a question is beside the point.

Supposed failure to deal with a manifest but unarticulated case

15                  We did not understand Mr Karp, for the appellant, to embrace the proposition that all young male Tamils in Sri Lanka faced persecution for reasons that they are members of a particular social group.  In the circumstances of this case, that matter is of some importance.  Unlike the appellant in Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247, this appellant was under no special disability.  The appellant was represented before the Tribunal.  Even so, had the evidence before the Tribunal disclosed such a case, the Tribunal would have been obliged to deal with it:

"Similarly, the RRT is not to limit its determination to the ‘case’ articulated by an applicant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the applicant."  Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 at 56 (per Merkel J)

16                  However, the evidence in this case did not disclose a reasonable basis for such a claim.  The appellant's own hypothesis, supported by the independent materials, was that there were militant Tamil groups such as PLOTE which were, for practical purposes, pro-Government and anti-LTTE.  Hence not all "young Tamil males", if they constitute a particular social group, would be persecuted for reasons of membership of such group but for reasons of their real or supposed anti-government tendencies or for reasons of their race.  There was nothing to suggest that, in Sri Lankan society, a social group of "young Tamil males with real or supposed anti-government tendencies", as distinct from other young Tamil males, would be recognised.  This was not a case which required that the Tribunal deal with such considerations.

Sufficiency of reasons

17                  That leaves the question of the sufficiency of the Tribunal's reasons for rejecting the claim and the hypothesis that, in common with many other young Tamil males, though not all, the appellant might have a well-founded fear of persecution for reasons of his race or imputed political opinion.

18                  A practical way of giving effect to the well-known strictures in the High Court and this Court against scrutinising the Tribunal's reasons with too fine an eye, where sufficiency of the Tribunal's reasons is in issue, is to attempt really to understand (consistently with the language used by the Tribunal) what the Tribunal's reasons were.

19                  The Tribunal expressly accepted that “as a young Tamil” the appellant might be arrested from time to time, be “mistreat[ed]” and be subjected to “incidents of rough handling” but it said there was “nothing in the applicant's evidence”, so far as it was accepted, that would suggest that he would “suffer some serious punishment or penalty by reason of his race or imputed political opinion”.  The Tribunal “[did] not accept, therefore” (our emphasis) that the appellant had a well founded fear of persecution.  Thus it is plain that the Tribunal concluded that the appellant's history of several years as a young Tamil adult male without, on the Tribunal's findings, suffering any serious harm, warranted the inference that there was no reasonable chance that he would suffer any such harm in future.

20                  That the Tribunal's conclusion was expressed by reference to the appellant's own evidence does not warrant the assumption that the Tribunal overlooked or otherwise failed to confront the independent evidence.  Indeed, the indicators are to the contrary.  The powerful nub of the Amnesty material was referred to in the Tribunal's reasons, without any indication of disbelief and with positive acceptance of the aspect of it to which, the Tribunal was entitled to think, the appellant was primarily drawing attention.  Further, the Tribunal said that there was nothing in the appellant's own evidence "which would suggest that he has ever been seriously suspected by the Sri Lankan authorities of supporting the LTTE" (emphasis added).  The implication is that the torture and "disappearances" were reserved for those seriously suspected.  As we have indicated, a finding that the appellant's past was a fair guide to his future may be a debatable one but it was open to the Tribunal, on the evidence in this case.  In our view, the nature of the Tribunal's reasoning rejecting the case based on race and/or imputed political opinion is, in the circumstances, sufficiently disclosed by its written reasons.  This alternative way of viewing the appellant's claim was shortly presented to the Tribunal and evidently did not represent the appellant's main subjective concerns.  In that situation, it is not surprising that the Tribunal's reasons on this point were more shortly expressed than they might otherwise have been.

Conclusion

21                  Like the primary judge, we feel some sympathy for the appellant.  However, the Tribunal's determination was not affected by any legal error or ground of review that enables our intervention.

Associate:

Dated:              15 September 1999