FEDERAL COURT OF AUSTRALIA

Sithamparapillai v Minister for Immigration & Multicultural Affairs [2000] FCA 897

IMMIGRATION – refugees – protection visa – review of a decision of the Refugee Review Tribunal – claim based on well‑founded fear of persecution – persecution by reason of continued deprivation of property – deprivation without means of redress – claims of threats made to applicants – if threats disbelieved could other activities of applicants justify a well‑founded fear of persecution.

Migration Act 1958 (Cth):  s 476

Hathaway, The Law of Refugee Status, 1991

SANMUGAN SITHAMPARAPILLAI and MANICKAM SITHAMPARAPILLAI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 724 of 1999

GOLDBERG J

5 JULY 2000

MELBOURNE

THE COURT ORDERS THAT:

1.         The application is dismissed.

2.         The applicants pay the respondent’s costs of the application including reserved costs.

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

REASONS FOR JUDGMENT

Introduction

1                     The applicants have applied to the Court pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”) to review the decision of the Refugee Review Tribunal (“the Tribunal”) made on 26 November 1999 affirming the decision of the delegate of the respondent (“the Minister”) made on 13 August 1997.  The delegate decided that the first applicant and his wife, the second applicant, were not persons to whom Australia has protection obligations under the United Nations Convention Relating to the Status of Refugees 1951 as amended by the 1967 Protocol Relating to the Status of Refugees (“the Convention”) and are therefore not entitled to the grant of protection visas. 

2                     The first applicant, a 72 year old Tamil citizen of Sri Lanka, and his wife arrived in Australia on 11 May 1997.  They lodged an application for a protection visa on 27 June 1997 and the application was refused on 13 August 1997.  An application to the Tribunal for review was filed on 27 August 1997 and a hearing before the Tribunal was held on 9 November 1999.

Background

3                     The first applicant was born in Vavuniya in the north of Sri Lanka.  He worked as a government postmaster in various locations, including Vavuniya, between 1950 and 1984 and lived in Vavuniya after 1984 until he departed for Australia.  He had visited Australia for three months in 1996 and resumed living in Vavuniya when he returned to Sri Lanka.  He claimed that he cannot live in Vavuniya due to the activities of the Tamil militant groups People’s Liberation Organisation of Tamil Eelam (“PLOTE”), Liberation Tigers of Tamil Eelam (“LTTE”) and the Sri Lankan armed forces (“SLAF”). 

4                     A house owned by the first applicant was taken over by the SLAF in 1993 and a house owned by the second applicant was taken over in the same year by PLOTE, a Tamil political organisation with its own militia closely allied with the Sri Lankan government and its security forces.  The first applicant’s house was in an area that was subjected to bombing and fighting; his wife’s property was on the outskirts of Vavuniya in an area partly controlled by the SLAF and partly controlled by the LTTE.  The first applicant sought the return of both houses but the SLAF told him that his house will be returned when the circumstances are correct and PLOTE told him that they still needed his wife’s house.  The applicants shared a house with other people in Vavuniya during the period their houses were taken over. 

5                     When the SLAF took control of Vavuniya from the LTTE in 1993 it established a Citizens’ Committee as a liaison between the military administration and the civilian population and the first applicant was one of the Tamil civilians on that Committee.  From time to time the first applicant was asked to interpret when security officials interviewed people coming into Vavuniya who were suspected of links with the LTTE.  On occasions the first applicant would be asked to identify people under questioning.  Although the Committee was disbanded in 1994 the SLAF continued to ask the first applicant to assist them on some occasions.  Between 1993 and 1997 the first applicant said he was required to assist the SLAF on ten to fifteen occasions.  The first applicant said he was forced by the SLAF to identify LTTE suspects and he contended that the LTTE attacks anybody who assists the government. 

6                     In one particular incident, in April 1997 a military official was killed at the shop of one of the first applicant’s relatives and he was called by the SLAF to help identify people who had been rounded up.  He did not identify any of them as having links with the LTTE but he said that the LTTE was looking for him after that incident.  Another incident relied upon by the first applicant occurred in December 1996 when he said he was warned by the LTTE on Christmas Eve not to continue assisting the SLAF.  The second applicant remembered that the first applicant was warned by the LTTE on 18 January 1997, an incident which was not mentioned by the first applicant.

7                     The applicants submitted information to the Tribunal relating to the activities of the LTTE in Vavuniya and submitted a letter from the Red Cross stating that the first applicant was utilised against his will “on a regular basis to identify and translate interrogation of suspected LTTE detainees and also those in various processing camps”. 

8                     The first applicant said that he cannot obtain a pass to live in another part of Sri Lanka and that he has no protection in Vavuniya where he and his wife cannot live in their own house but must live with other people.  The first applicant said that he feared that he would be harmed by the LTTE as a suspected informer to, or collaborator with, the SLAF and he also feared that he would be harassed by the PLOTE and the SLAF as a suspected informer to the LTTE.

Reasoning of the Tribunal

9                     The Tribunal identified the legislative framework and referred to relevant authorities bearing upon the issue whether the applicants had a well‑founded fear of persecution for a Convention reason.

10                  The Tribunal found that while deprivation of the use of property is a serious inconvenience it did not amount in the circumstances of this case to harm that was serious enough to amount to persecution.  The Tribunal was satisfied that there was no nexus between the occupation of the two properties and the Convention.  The Tribunal did not accept that the properties were occupied because the applicants were Tamil and was satisfied that they were occupied in a legitimate security operation motivated by the Sri Lankan Government’s need to control the area.  The Tribunal also took into account the first applicant’s evidence that both the SLAF and PLOTE had indicated that he could resume the occupation of the properties when they had no need for them for security reasons.  The Tribunal found that the occupation of the applicants’ properties was not persecutory and was not done, and did not continue, for any Convention reason.

11                  The Tribunal analysed the first applicant’s evidence as to the threats that had been made to him and his apprehension as to his personal safety.  The Tribunal noted that the first applicant’s son‑in‑law had been staying with the applicants at the time the first applicant said he received the warning in December 1996 but the son‑in‑law had not been told of the warning until after he returned to Australia on 18 January 1997.  The Tribunal found it implausible that the first applicant would not communicate to his close relatives a serious threat against him and found it most unlikely that the first applicant would remain in Vavuniya for several months after a threat had been made to him when he already had a visa to come to Australia, a valid passport and a supportive family in Australia.  Accordingly, the Tribunal found that the first applicant had fabricated his account of being threatened by the LTTE on Christmas Eve 1996 or on 18 January 1997. 

12                  The Tribunal also found that most of the times the first applicant was required for identification was for the benefit of suspects under interrogation and it was satisfied that he was not threatened by the LTTE if he could not help the suspects.  The Tribunal found that the first applicant’s return to Vavuniya after he visited Australia in mid‑1996 was consistent with the conclusion that the first applicant did not believe he would be harmed there.

13                  The Tribunal accepted that the LTTE may harm people if it suspected them of being traitors but noted that the first applicant gave no evidence that he had criticised the LTTE or that he had passed on information to the SLAF.  The Tribunal found there was no evidence that the LTTE kills all people who have worked for the Sri Lankan forces or were suspected of working for them.  The Tribunal said:

“The Applicant is a well‑respected person in and around Vavuniya and despite being involved in public affairs since 1993 he has not been harmed by the LTTE.  The Tribunal does not accept that there is a real chance he faces serious harm at the hands of the LTTE because he is suspected of being a ‘traitor’ to the LTTE cause.  Even if the LTTE had some interest in harming him, the Applicant has the protection of the SLAF which has placed him in positions of trust on previous occasions.”

Submissions of the parties

14                  The applicants submitted that the Tribunal erred by adopting a construction of “persecution” other than that found in the Convention.  They submitted that their claims were not merely that their properties had been resumed or occupied but that this had been imposed upon them by agencies of the Sri Lankan State and that the failure of the State to respond to their complaint demonstrated that they were unable to rely upon the protection of the State.  They accepted that deprivation of property alone is not a sufficient Convention ground but submitted that the Tribunal adopted an approach to “persecution” which ignored their claim that they feared persecution on the ground of their continued deprivation of property.  In short, they submitted that the Tribunal failed to take into account the fact that deprivation of property without any means of redress could amount to persecution.

15                  The applicants also submitted that the Tribunal erred in the manner in which it had determined that they did not have a well‑founded fear of persecution as a result of the threats which they claimed had been made.  It was said that the Tribunal erred by construing their claims on the basis that they were required to establish that they had been threatened rather than, as the Convention required, that they had a well‑founded fear of persecution.  It was said that this error constituted a failure to comply with procedures within s 476(1)(a) of the Act.  It was also said that the Tribunal did not address their claim that they feared persecution on the basis that they were perceived to be Tamils who collaborated with the SLAF and not on the basis that they claimed to have received specific threats from the LTTE.  It was said in the alternative that the Tribunal made the decision on the basis of a fact that did not exist within s 476(1)(g) and s 476(4)(b) of the Act.  The particular fact relied upon was that their claim for refugee status was based upon fear of the LTTE as evidenced by specific threats.

16                  The respondent submitted that the Tribunal did not rest its decision on the existence of State protection from persecution but rather found that the deprivation of the applicants’ properties did not amount to persecution.  It also submitted that the Tribunal dealt with the claim that the applicants were at risk because of a perception that they were antipathetic to the LTTE.

Reasoning

17                  Although the applicants attacked the Tribunal’s reasoning on the basis that it involved an error of law within s 476(1)(e), a failure to act according to substantive justice or the merits of the case contrary to s 420(2)(b) of the Act and that it based its decision on evidence of a particular fact which did not exist within s 476(1)(g) and s 476(4)(b) of the Act, the factual substratum for these submissions is not made out.  The respondent challenged the applicants’ justification for relying on these sections of the Act but even assuming that the applicants are entitled to rely upon these sections, I do not consider that there were any errors disclosed in the Tribunal’s reasoning process.

Deprivation of property

18                  The hurdle which the applicants were unable to overcome in relation to their claim based upon the deprivation of their properties was that they could not establish that such deprivation, even assuming it to be “persecution” for the purpose of the Convention, had occurred for a Convention reason, that is to say for a reason of race, religion, nationality, membership of a particular social group or political opinion.  The Tribunal was satisfied that there was “no nexus between the occupation of the properties and the Convention”.  The Tribunal made the following specific finding:

“The Tribunal does not accept that the properties were occupied because the Applicants are Tamil.  It is satisfied that the properties were occupied in a legitimate security operation motivated by the Sri Lankan government’s need to control an area they perceived to be under the control of terrorists or at risk of such control, notwithstanding that from a different perspective, the LTTE may be perceived to be pursuing a war of nationalism.”

The applicants did not seek to challenge this finding.  Rather they complained that the Tribunal did not consider whether they had any ability to regain their properties and whether they had any recourse to the State to recover their properties.

19                  The difficulty with this proposition is that the applicants correctly accepted that deprivation of property alone is not a sufficient Convention ground.  They relied upon a number of passages in Hathaway, The Law of Refugee Status, 1991, for the proposition that deprivation of property could amount to persecution.  However, that text does not assist the applicants.  At p 108‑112 the author considers what rights are appropriately considered to be basic and inalienable.  The author refers to four distinct types of obligations which exist within the International Bill of Rights which consists of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.  At p 111 the author says:

“Fourth, a few of the rights recognized in the Universal Declaration were not codified in either of the binding covenants on human rights, and may thus be outside the scope of a state’s basic duty of protection.  The right to own and be free from arbitrary deprivation of property and the right to be protected against unemployment are examples of rights which are included in this group, and which will not ordinarily suffice in and of themselves as the foundation for a claim of failure of state protection.”

Later at p 120 the author says:

“Similarly, a claim grounded solely on the actual or anticipated confiscation of property or damage to goods, without any attendant risk to personal security or basic livelihood, is not of sufficient gravity to warrant the granting of refugee status.”

In any event, the Tribunal did have regard to the applicants’ prospects of being able to recover their properties and whether they had any recourse to the State.  The Tribunal said:

“The Applicants’ evidence is that both the SLAF and PLOTE have indicated that he can resume occupation of his properties when those groups have no need for them for security reasons.  In all of the circumstances, the Tribunal finds that the occupation of the Applicants’ properties is not persecutory and was not done, and does not continue, for any of the reasons in the Convention.”

The applicants’ attack on the Tribunal’s analysis and reasoning in relation to the claim for refugee status based upon the deprivation of their properties must fail.

Well‑founded fear of persecution

20                  The applicants did not challenge the Tribunal’s findings that it was satisfied that the first applicant had fabricated his account of being threatened by the LTTE on Christmas Eve 1996 or on 18 January 1997.  The attack made on the Tribunal’s reasoning was that having found that the threats had occurred the Tribunal then concluded that in those circumstances the applicants could not have a well‑founded fear of persecution.  It was said that the issue was not whether threats had been made but rather whether the applicants had a well‑founded fear of persecution which could exist independently of the existence of threats.  It was submitted that the Tribunal failed to take into account other circumstances which warranted the existence of a well‑founded fear of persecution due to the perception which those circumstances might engender in the LTTE.  The applicants relied upon the following facts which justified a fear of persecution by the LTTE – the applicant was a Tamil who was involved with the Military Civic Committee, he acted as an interpreter publicly and openly on behalf of the SLAF, he was a well respected man who was associated with the SLAF.  In short, the applicants submitted that the question was whether the first applicant’s fear was well‑founded because there would be a perception that he had allied himself with the SLAF or was antipathetic to the LTTE.  The applicants submitted that this was not a claim which was considered by the Tribunal.

21                  Even if this submission could be fitted within s 476(1)(a) and s 476(1)(e) of the Act in conjunction with s 420(2)(b) it is not made out on the facts.

22                  The Tribunal specifically turned its attention to the issue whether the LTTE might consider that the first applicant was a traitor and antipathetic to its cause in the following passage:

“The Tribunal accepts that the LTTE may harm people it suspects are traitors, such as those who have passed on information to the security forces or have planned to kill the LTTE leader (see, for instance, Amnesty International, August 1996 ‘Sri Lanka:  wavering commitment to human rights’ at 23 ff., provided by the Applicant).  The Applicant gave no evidence that he has criticised the LTTE, nor that he has passed on information to the SLAF.  There is no evidence to indicate that the LTTE kills all people who have worked for the Sri Lankan forces or are suspected of working for them.  If that was the case, it could be expected that civilians in towns under a military administration, such as Vavuniya, would be the victims of mass human rights abuses committed by the LTTE, but that has not occurred.  The Applicant is a well‑respected person in and around Vavuniya and despite being involved in public affairs since 1993 he has not been harmed by the LTTE.  The Tribunal does not accept that there is a real chance he faces serious harm at the hands of the LTTE because he is suspected of being a ‘traitor’ to the LTTE cause.  Even if the LTTE had some interest in harming him, the Applicant has the protection of the SLAF which has placed him in positions of trust on previous occasions.”

This passage is an effective answer to the applicants’ submission that the Tribunal failed to take into account whether the LTTE might consider the first applicant was a traitor and antipathetic to its cause.

23                  There is no merit in the submission based upon s 476(1)(g) and s 476(4)(b) of the Act.  It was said that the Tribunal erred in construing the claims made by the applicants as depending upon the existence of specific threats to the first applicant by the LTTE, on either or both of 24 December 1996 or 18 January 1997, when this was not the claim made by the applicants.  For the reasons to which I have referred the Tribunal in fact considered the claim that the first applicant was at risk of persecution because of the perception he was antipathetic to the LTTE.  Even if the Tribunal had not considered that claim it would not have provided a ground of review under s 476(1)(g) and s 476(4)(b) as the Tribunal considered a range of facts which were before it.

24                  The application will be dismissed with costs. 

Associate:

Dated:              5 July 2000