Sivasubramaniam v Minister for Immigration & Multicultural Affairs [2001] FCA 1043

FEDERAL COURT OF AUSTRALIA

Sivasubramaniam v Minister for Immigration & Multicultural Affairs [2001] FCA 1043

Migration Act 1958 (Cth) Minister for Immigration & Multicultural Affairs v Tas (2000) FCA 1657 referred to Minister for Immigration & Multicultural Affairs v Prathapan (1998) 156 ALR 672 referred to Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 referred to Yusuf v Minister for Immigration & Multicultural Affairs (2001) 180 ALR 1referred to Minister for Immigration & Multicultural Affairs v Eshetu (1999) 162 CLR 577 referred to Minister for Immigration & Multicultural Affairs v Gui [1999] FCA 1496 referred to SIVAPATHAN SIVASUBRAMANIAM & ORS v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 376 OF 2001 HELY J 3 AUGUST 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 376 OF 2001

BETWEEN: SIVAPATHAN SIVASUBRAMANIAM

FIRST APPLICANT

SIVAPATHAN SANTHAKMARI

SECOND APPLICANT

SHANTOSH SIVAPATHAN

THIRD APPLICANT

SAYO SIVAPATHAN

FOURTH APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: HELY J

DATE OF ORDER: 3 AUGUST 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 376 OF 2001

BETWEEN: SIVAPATHAN SIVASUBRAMANIAM

FIRST APPLICANT

SIVAPATHAN SANTHAKMARI

SECOND APPLICANT

SHANTOSH SIVAPATHAN

THIRD APPLICANT

SAYO SIVAPATHAN

FOURTH APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: HELY J

DATE: 3 AUGUST 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The first applicant ("the husband") and the second applicant ("the wife") are Sri Lankan Tamils who were born in Jaffna. The wife arrived in Australia on 29 June 1997 with the two children of her marriage to the husband. On 30 July 1997 the wife applied for a protection visa and included the two sons in her application. The husband was then in Switzerland, and was not included in the wife's application. 2 The husband arrived in Australia on 17 January 1998. On 25 February 1998 he applied for a protection visa. His application recorded that his wife and two sons were members of the family unit who were in Australia, but were not included in the husband's application, because the wife had already applied for a protection visa on her own behalf and on behalf of the children. 3 The subsequent history of the visa applications is recorded in the reasons for decision given by the Refugee Review Tribunal ("RRT") on 26 February 2001 in which RRT affirmed the decision not to grant protection visas to any of the applicants. It is that decision which is the subject of the Amended Application for an Order of Review filed in Court on 24 July 2001. 4 RRT said that it accepted the wife's account of her experiences in Sri Lanka in the early 1980's. That account included a claim that whilst she was a student, the LTTE (Liberation Tigers of Tamil Eelam) were expanding, and approached the wife and other students with a view to securing their support. Her father arranged for her to work in Singapore from 1982 – 1986 to save her from the influence of LTTE. The wife returned to Sri Lanka when her Singapore work contract ended. 5 The wife's account also included a claim that on her return from Singapore, LTTE demanded that she should join them or assist them, which demands she refused. They also demanded money from her, as they did from other Tamils who had earned money abroad. The wife could not pay; she was then abducted and kept in isolation until her father paid the amount demanded. Her father arranged for her to go to Switzerland in 1986. She has not been back to Sri Lanka since 1986. 6 RRT also accepted the husband's account of his experiences in Sri Lanka in the early 1980's. In particular, RRT accepted that the husband returned to Jaffna from India in late 1979, that he lived in the Colombo area from 1980 to September 1981 but then went to Singapore to avoid trouble because he had given overnight accommodation to two friends who were in the LTTE. While back in Jaffna for six months in the first half of 1984 the husband was pressured to join the LTTE. Once, at a Sri Lankan cinema, the husband was mistakenly identified as a major LTTE leader; he was arrested at the cinema, detained and seriously mistreated or tortured by the authorities before his father had him released. He left for Switzerland in mid-1984 and has not been back to Sri Lanka since. 7 The applicants applied for refugee status on one or more occasions after their arrival in Switzerland. They were issued annual permits which permitted them to remain in Switzerland, but their re-entry visas expired on 16 June 1998, in the case of the wife, and on 30 October 1998, in the case of the husband. RRT accepted that the applicants have now been out of Switzerland for over three years. It was not suggested that the applicants could or should seek asylum in Switzerland. 8 The applicants claim to have a well-founded fear of persecution for a variety of reasons which were rejected by RRT and which have not been challenged in the proceedings in this Court. RRT expressed its conclusion in this way: "Having considered the applicants' claims to fear harm from the Sri Lankan authorities, and from the LTTE, even in Colombo, the Tribunal is not satisfied that that their fears are well-founded if they return to Sri Lanka now. In summary this is because it has been 20 years since the Applicant husband lived in Sri Lanka for any length of time and then it was in Jaffna for 6 months in the first half of 1984, and almost as long in respect of the Applicant wife, except for some time in 1986 after her return from Singapore and before she went to Switzerland in October 1986 and the Tribunal is satisfied that it is not plausible that they are now of adverse interest to the authorities or the LTTE for any reason." 9 One aspect of the applicants' claims which is the subject of challenge in these proceedings is that the applicants claimed that whilst they were in Switzerland, they were forced to make monthly payments to LTTE under threats of assault and worse. It was claimed that in December 1996 the applicants' son was abducted by the LTTE and released three days later when a sum of money was paid to a prominent LTTE member. The husband claimed that LTTE demanded that he become involved in LTTE's activities, and harassed his parents in Sri Lanka when he refused. The applicants claimed not only that they had a well-founded fear of persecution at the hands of the authorities if returned to Sri Lanka, but also that they had had problems with LTTE in Switzerland, and would have them again if returned to Sri Lanka. As the quoted passage demonstrates, it is clear that the applicants claimed to fear harm both from the Sri Lankan authorities, and from the LTTE, even in Colombo. 10 RRT was not satisfied that the applicants have a well-founded fear of persecution for reason of their Tamil ethnicity or for reason of a pro-LTTE opinion imputed to them by the authorities or for reasons of an anti-LTTE opinion imputed to them by the LTTE, or for any other Convention reason: "As the Tribunal is satisfied that the applicants do not have a well-founded fear of persecution within the meaning of the Convention in Sri Lanka, it is not necessary to consider their claims of harassment and extortion in relation to Switzerland." (emphasis added) 11 It is hard to know what to make of the passage which I have emphasised. If the Tribunal was intending to hold that the applicants' claims as to harassment and extortion by the LTTE whilst they were in Switzerland were immaterial to their claims to refugee status then this would surely be an error. 12 At RD 162 the RRT addresses the applicants' claim that they were subjected to extortion by the LTTE in Switzerland. RRT did not state in express terms whether or not it accepted that claim. A beneficial reading of its reasons indicates that it did so because at RD 162 the following appears: "The applicants claimed that they were subject to extortion by the LTTE in Switzerland; their written evidence indicates that this went on since at least the mid 1980's yet later they claimed that it was only a serious problem from 1995/96. The Tribunal accepts that it is widely known and reported that the LTTE extorts money or receives voluntary contributions, from an international Sri Lankan Tamil diaspora of 450,000-500,000 ('Tamil Tiger International' A Davis Jane's Intelligence Review 1 October 1996). Even if in the Applicants' case, the Sri Lankan authorities know or suspect that the Applicants contributed financially to the LTTE when they lived in Switzerland, there is no evidence to suggest that this would bring them to the adverse attention of the Sri Lankan authorities on return to Sri Lanka. Furthermore it has now been some years since they paid money to the LTTE and the Tribunal does not accept as plausible, that this activity or suspicion thereof, results in adverse consequences on return to Sri Lanka. Also, independent country information about returnees does not suggest that this occurs." RRT here rejects part of the applicants' claim, namely that they have a well-founded fear of persecution at the hands of the authorities by reason of the payments extorted from them by the LTTE whilst they were in Switzerland. But what of a fear of persecution at the hands of the LTTE which was uncontrollable by the Sri Lankan authorities? In other words, is there a real chance of harm at the hands of the LTTE against which the Sri Lankan authorities do not provide adequate state protection: Minister for Immigration & Multicultural Affairs v Tas (2000) FCA 1657; Minister for Immigration & Multicultural Affairs v Prathapan (1998) 156 ALR 672, 677. 13 Earlier in its decision, at RD 153 when discussing the evidence given at the hearing in the context of the claims that the applicants had problems with the LTTE in Switzerland, and that they will have problems with the LTTE in Sri Lanka, the following appears: "The Tribunal noted that the focus of her claims had been to fear harm from the Sri Lankan authorities but that if the applicants had problems from the LTTE in Colombo or other areas under government control in Sri Lanka, that the Sri Lankan authorities, who have been at war with the LTTE for years, would assist them." 14 RRT returned to this theme at RD 162: "The Tribunal is satisfied that if the Applicants had difficulties returning to the Jaffna area or because of the hardships there chose not to do so, that they could settle in Colombo, as have more than 100,000 Tamils from the north, or elsewhere in the country, particularly in the south; the applicants have shown, by living in foreign countries, that they can settle in unfamiliar surroundings successfully. The Tribunal does not accept as plausible that the Applicant parents or children, as long as they remain outside LTTE controlled areas in the north, would be of interest to the LTTE for any reason. Neither applicant ever claimed that they actually joined the LTTE and the Tribunal does not accept as plausible after all these years that the LTTE would approach them for any reason on return to a government controlled area such as Colombo; the LTTE is a highly trained terrorist organisation and the independent country information suggests that it does not pursue or target ordinary Tamils in Colombo for money or assistance (emphasis added, citations omitted). In any case the Tribunal is satisfied that if the Applicants were troubled by the LTTE in Colombo, that the Sri Lankan security forces take action against complaints made by all communities in Sri Lanka if they pertain to areas where the government has control." 15 A fair reading of RRT's decision indicates that RRT has taken into account the applicants' claims as to extortion whilst they were in Switzerland. RRT has inferentially accepted those claims but has come to the conclusion that they do not give rise to a well-founded fear of persecution at the hands of the Sri Lankan authorities. Nor do they indicate that the applicants are exposed to a real chance of harm on the part of LTTE, and in any event, on RRT's assessment, effective state protection is available with respect to any harassment on the part of LTTE.

The proceedings in this Court 16 The Amended Application raised two grounds. They are as follows: Ground 1 1. The Tribunal's decision involved an error of law (s 476(1)(e)). Particulars 1.1 The Tribunal failed to take into account the fact that the first applicant had suffered significant mistreatment in Sri Lanka in the past in determining whether the first applicant had a well-founded fear of persecution, and therefore misunderstood the nature of the test that it had to apply. Ground 2 1. The Tribunal acted beyond jurisdiction in failing to consider the totality of the applicants' claim (s 476(i)(b)). Particular 1 2.1 The Tribunal failed to consider whether the first and second applicants' actual (as opposed to perceived) activities in Switzerland put them at real risk of persecution from the LTTE upon their return to Sri Lanka. Particular 2 2.2 The Tribunal failed to independently consider the third and fourth applicants' claims in relation to persecution from Sri Lankan authorities on the basis of their Tamil ethnicity, and perceived separatist sympathies, as young Tamil males. Particular 2.2 was abandoned by the applicants' counsel during the course of submissions.

Ground 1 17 The submission takes as its starting point RRT's acceptance of the husband's claims in relation to his treatment whilst in Sri Lanka in the 1980's "... apart from his claim that he was wanted by the authorities when he left". RRT expressly accepted his claim of "detention, serious mistreatment or torture by the authorities ..." shortly before his leaving for Switzerland, never to return. The husband gave an account of three months of torture, during which he was beaten, starved and lost consciousness. He observed other youths being tortured to death, and during this time the applicant himself feared death. 18 In Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 415 Gaudron J stated: "The definition of 'refugee' looks to the mental and emotional state of the applicant as well as to the objective facts. It is a commonplace, encapsulated in the expression 'once bitten, twice shy', that circumstances which are insufficient to engender fear may also be insufficient to allay a fear grounded in past experience. Although the definition requires that there be a 'well-founded fear' at the time of determination it would be to ignore the nature of fear and to ignore ordinary human experience to evaluate a fear as well-founded or otherwise without due regard being had to the applicant's own past experiences. If an applicant relies on past experiences it is, in my view, incumbent on a decision-maker to evaluate whether those experiences produced a well-founded fear of being persecuted. If they did, then a continuing fear ought to be accepted as well-founded unless it is at least possible to say that the fear of a reasonable person in the position of the claimant would be allayed by knowledge of subsequent changes to the country of nationality. To require more of an applicant for refugee status would, I think, be at odds with the humanitarian purpose of the Convention and at odds with the generally accepted views as to its application to persons who have suffered persecution ..." 19 The applicants submit that having accepted an account of truly horrific treatment immediately prior to the first applicant's departure, it was incumbent upon the Tribunal to ask itself first, whether the first applicant held a continuing fear, and second, whether a reasonable person having experienced that which the first applicant had experienced, would, due to any subsequent changes in Sri Lanka, have that fear allayed. To approach the matter in the clinical way in which the Tribunal approached it was at odds with the humanitarian purpose of the Convention. 20 It was submitted that such a failure to apply the correct test in the circumstances amounts to an error of law: see for instance Yusuf v Minister for Immigration & Multicultural Affairs (2001) 180 ALR 1 at [82]. 21 In Minister for Immigration & Multicultural Affairs v Eshetu (1999) 162 CLR 577 at 612 (150) Gummow J said: "The view of Gaudron J in Chan that, if the experiences of the applicant produced a well-founded fear of being persecuted, 'then a continuing fear ought to be accepted as well-founded unless it is at least possible to say that the fear of a reasonable person in the position of the claimant would be allayed by knowledge of subsequent changes in the country of nationality' does not represent the view of the Court in Chan." Counsel for the applicant did not refer to the decision of Gummow J in Eshetu, nor did he refer to the decision of the Full Court in Minister for Immigration & Multicultural Affairs v Gui [1999] FCA 1496. In that case, the Full Court pointed out that the legislation has changed since the decision in Chan was given, and the observations of Gaudron J were made in a context where the reasonableness of the determination was in issue. 22 Gaudron J prefaced the quoted passages with the following observation: "I do not think it correct to say that the question whether if the fear is well-founded is to be answered by reference to the situation at the time of the determination and in isolation from the past experiences of the applicant." That is not what RRT did here. RRT commenced its assessment of whether the husband had a well-founded fear of persecution if returned to Sri Lanka with an acceptance of the personal experiences to which he was subjected whilst in Sri Lanka in the 1980's. The "correct test" which RRT was required to apply was the test established by Article 1A(2) of the Convention quoted by RRT at the commencement of its reasons (RD 146). As the Full Court pointed out in Gui, the assessment of the significance of the passage of time and changed circumstances were essentially factual matters for RRT to determine, but taking into account the applicants' experiences. This is what RRT did. In so doing it applied the "correct test" because it addressed the test which the text of the Convention posed for its determination. 23 The applicants' submission assumes that RRT is required to proceed by a staged process of a type that was rejected by the Full Court in Gui. As the Full Court pointed out, the question which RRT was required to determine is whether the applicant was a refugee at the date of its decision having regard to all of the circumstances placed before it up to that date.

Activities in Switzerland 24 Counsel submitted that RRT failed to take into account a relevant consideration, or failed to exercise jurisdiction, because it did not take into account "the possible consequences of conflicts that the applicants have been engaged in with the LTTE in Switzerland." This is clear, in counsel's submission, from RRT's assertion at RD 163.12, that "it is not necessary to consider their claims of harassment and extortion in relation to Switzerland", and the Tribunal's "general failing to make any findings in relation to what occurred to the applicants in Switzerland". 25 I have already dealt with this submission. I agree that RRT's quoted observation is opaque, but it seems to me that RRT has made findings in relation to what occurred to the applicants in Switzerland, and has assessed whether those occurrences gave rise to a well-founded fear of persecution if the applicants were to return to Sri Lanka. 26 There was some discussion during the course of submissions as to whether Yusuf has expanded what was theretofore thought to be the scope of judicial review available in the Federal Court under Part VIII of the Migration Act 1958 (Cth) ("the Act") independently of s 420 and s 430. It is not necessary for me for the purposes of this decision to express a view on those questions, nor is it desirable that I should do so, if only because the matter was not fully explored, and the applicants' counsel did not refer in his argument to any of the judgments in this Court subsequent to Yusuf which have discussed the effect of that decision.

Conclusion 27 The proceedings should be dismissed with costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely .

Associate: Dated: 3 August 2001

Counsel for the Applicant: Mr C Jackson

Counsel for the Respondent: Mr R Bromwich

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 24 July 2001

Date of Judgment: 3 August 2001