Arumugasamy v Minister for Immigration & Multicultural Affairs [1999] FCA 1554

FEDERAL COURT OF AUSTRALIA

Arumugasamy v Minister for Immigration & Multicultural Affairs [1999] FCA 1554 IMMIGRATION – error of law – procedural error in failure to make findings – application for review of decision of Refugee Review Tribunal refusing to grant protection visa – whether alleged persecution was for a Convention reason – whether social group an artificial construct based only on persecution of members for a non-Convention reason – whether error of law in failure to consider if conduct amounted to persecution – whether inconsistencies in findings – whether suffered persecution for a Convention reason by security forces – whether failure to consider if real chance of persecution in the future despite findings of no past persecution – whether fear assessed as at date of hearing Migration Act (1958) (Cth) ss 476(1)(a) and (e), 430(1) Convention Relating to the Status of Refugees 1951 as amended by the 1973 Protocol Article 1A(2) Minister for Immigration and Ethic Affairs v Respondent A (1995) 57 FCR 309 applied Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 applied Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited PERINBAMOORTHY ARUMUGASAMY v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NG 1412 OF 1998 TAMBERLIN J SYDNEY 11 NOVEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG1412 OF 1998

BETWEEN: PERINBAMOORTHY ARUMUGASAMY

APPLICANT

AND: MINISTER FOR IMMIGRATION

AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: TAMBERLIN J

DATE OF ORDER: 11 NOVEMBER 1999

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: The application is 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 NG1412 OF 1998

BETWEEN: PERINBAMOORTHY ARUMUGASAMY

APPLICANT

AND: MINISTER FOR IMMIGRATION

AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: TAMBERLIN J

DATE: 11 NOVEMBER 1999

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application for review of a decision of the Refugee Review Tribunal ("RRT") under s 476 of the Migration Act (1958) (Cth) ("the Act"). 2 The applicant is a Tamil and a citizen of Sri Lanka. He arrived in Australia on 4 October 1996 and shortly thereafter he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs under the Act. On 18 December 1997, a delegate of the Minister for Immigration and Multicultural Affairs refused to grant the protection visa. The applicant sought review of that decision before the RRT. On 30 November 1998, the RRT decided that it was not satisfied that the applicant was a refugee and affirmed the decision of the delegate not to grant a protection visa. The applicant now seeks review of the decision of the RRT. 3 Article 1A(2) of the Convention Relating to the Status of Refugees 1951 as amended by the 1973 Protocol (the "Convention") relevantly defines a "refugee"as a person who: "… 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…" 4 The applicant raises two broad grounds for review. The first is error of law and the second is procedural error in failure to give reasons. Counsel for the applicant agrees that if he is unsuccessful in relation to the arguments based on claimed errors of law, the argument for procedural breach based on failure to give reasons as required by s 430 of the Act must also fail. 5 At the outset, it should be pointed out that the RRT made a strong finding against the credibility of the applicant. At p 13 of the decision, after examination of a large number of specific matters in respect of which the RRT did not accept the evidence of the applicant, it concluded: "Having regard to all these matters, and having considered the Applicant's evidence before it at hearing, the Tribunal is satisfied that the Applicant's evidence cannot be relied upon and that he has at least substantially embellished (and in some instances fabricated) his account of his experiences." 6 The first submissions made are to the effect that the RRT erred in law because it failed to consider whether the applicant was being persecuted "by reason of race or membership of a particular social group" namely, young Tamil males or fishermen who were subjected to threats and extortion by various Tamil groups. 7 As to these matters the RRT found, in discussing possible harassment from Tamil groups (at p 14-15): "… the Tribunal is satisfied that the Tamil groups, including the LTTE were concerned to secure money or services from the applicant for its own purposes, or to recruit him, and were not motivated by any desire to single him out or to harm him for any Convention reason. On the evidence before it provided by the Applicant (to the extent that it can be relied upon), the Tribunal is not satisfied that these groups imputed any hostile political opinion to the Applicant or sought to harm him for that reason. Whether or not this intermittent attention and demands might be said under the circumstances to amount to persecution, the Tribunal is satisfied that it did not occur for a Convention reason." (Emphasis added) 8 It is evident that the RRT considered that the Tamil groups did not single out the applicant for any Convention reason. This would include reasons referable to racial characteristics or social groups. This conclusion is one of fact and it was open to the RRT on the evidence. I do not agree that there was any failure to consider this issue. 9 The applicant also claims that the RRT erred in law in failing to make findings on a material issue namely, whether the mistreatment by the Tamil groups was persecutory. This submission must also be rejected. Without the element of a Convention reason for the conduct, a finding that the conduct was in fact persecutory could be of no assistance to the applicant's claim for refugee status. Therefore any failure by the RRT on this issue does not amount to an error of law. 10 The next submission for the applicant is that the RRT erred in law in making inconsistent findings as to whether or not Tamils in Sri Lanka are targeted by government authorities, and in doing so showed that it misunderstood the law as to what constitutes a Convention reason for persecution. As regards this claim, the RRT found that by reason of being Tamil, the applicant may be subject to interrogation by security forces on security grounds. The Tamils may receive particular attention because the Sri Lankan government considers the LTTE, a Tamil organisation, as constituting the source of the security problem with which the government is confronted. The RRT found further that a consistent picture emerges indicating that the Sri Lankan authorities do not target Tamils per se. 11 There is, in my view, no error of law or inconsistency in the findings of the RRT on this point. If young Tamil males are targeted on the underlying basis that they pose a security risk, then the conduct is directed to them in order to enforce general security and safety measures, and not to selectively persecute them as a social group. As the Full Federal Court said in Minister for Immigration and Ethic Affairs v Respondent A (1995) 57 FCR 309 at 325: "The respondents are not facing persecution by reason of membership of any social group having a recognisable existence separate from the persecutory acts complained of." 12 Further, as McHugh J points out in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 269-270, when speaking of couples who wanted a second child in the People's Republic of China: "There is no social attribute or characteristic linking the couples, nothing external that would allow them to be perceived as a particular social group for Convention purposes. To classify such couples as "a particular social group" is to create an artificial construct that bears no resemblance to a social group as that term is ordinarily understood. Indeed it is hard to see how such couples are even a group for demographic purposes." 13 In the present case the questions whether a young Tamil male is a member of a social group is also artificial because it is clear that Tamils comprise a racial group. If the applicant fails in his case on racial persecution because there is no persecution for reasons of race, then in the absence of any other relevant factor, his case rises no higher on the basis that he may also be a member of a social group of the same race members of whom are persecuted for a non-Convention reason. The real reason for their persecution has been found by the RRT to be based on security needs, or in some cases extortion. The only reasonable basis for the applicant claiming protection in the present case is on the ground of racial discrimination, and on the findings made by the RRT he has failed on this aspect. This submission does not advance the applicant's case. 14 Similar reasoning applies in relation to the suggestion that the applicant is a member of a particular social group, namely "fishermen who were subjected to threats and extortion" by Tamil groups. It is necessary to look at the reasons underlying the threats and extortion alleged. It was open to the RRT to conclude that such a limited group, as that described, associated by the criterion that they engaged in limited fishing activities in a particular defined area of Sri Lanka, did not constitute a social group for the purposes of the Convention which is concerned with "refugees". There is no error of law disclosed on this aspect. 15 It is not correct to say that the RRT failed to make findings on the issue of persecution in the Convention sense. With regards to both the LTTE and the security authorities, the RRT found that these bodies were concerned, in the case of the LTTE, with extortion of money or exaction of service, and in the case of the security authorities, the underlying concern was with security, and not with Convention based grounds. The motives for persecution as determined are not Convention reasons. There is no error here. 16 As referred to above, it is said for the applicant that the RRT made inconsistent findings on the question whether Tamils are targeted by the government authorities. The RRT said that Tamils receive particular attention because the government considers that they are a security risk for the reasons referred to above. The other statement, which also relates to government authorities, is to the effect that "Sri Lankan authorities do not target Tamils per se". 17 On a fair reading of these passages I do not consider that they are inconsistent. The reference to "per se"indicates that other relevant considerations may operate, such as Tamils being perceived to be a security risk. This was a reason given by the RRT and it has not been shown that it was not an available conclusion. The language used when examining the reasons for decision of an administrative tribunal must not be approached by seeking to discern some inadequacy in the way in which the reasons are expressed: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 particularly at 272. In light of the above discussion, I find that there is no inconsistency in the findings demonstrating a misunderstanding of the law as to what constitutes a Convention reason for persecution. 18 It is then submitted that the RRT failed to address the issue whether legitimate security measures were being abused to the extent that they had become systematically persecutory, and whether the Government's action was sufficient to rule out the risk of future persecution. This argument does not appear to have been raised below, and no reference was given to any material which would indicate that the security measures were being used as a cloak for persecution. Referring to country intelligence, the RRT concluded that: "the Sri Lankan authorities do not target Tamils per se and that the Government is providing mechanisms for the protection of Tamils from mistreatment by security forces". 19 This finding is criticised because there is some material to the effect that crucial safeguards built into the emergency regulations, especially concerning receipts for persons arrested and the giving of notice when arrests are made by Government authorities, were being ignored. However, there was no indication that the RRT did not take this intelligence into account nor that other security measures were not adequate or at least a significant improvement. This area of the evaluation of the extent of the security measures is factual one and its importance is a matter for the RRT to evaluate and not this Court. Some reliance was also placed on other material relating to Tamils in Columbo but this was not shown to be relevant to the area where the applicant resided which was Udappu, a Tamil fishing village in a North Western province of Sri Lanka. 20 The next submission for the applicant is that the RRT erred in law in failing to consider whether he faced a real chance of persecution in the future, despite its findings that he had not suffered in the past to the extent claimed. The applicant points to his submissions to the RRT which identified evidence before it to the effect that Tamils returning from overseas and young Tamils faced particular risks, and that there had been various arrests and abductions of people in Udappu in 1997. I do not agree with the submission. The RRT in its reasons examined and addressed the evidence before it on the treatment of Tamils in Sri Lanka by security forces, and concluded that Tamils receive particular attention for reasons of security and not because they are Tamils per se. I light of this finding, I consider that there was no failure to consider whether there was a real chance of persecution in the future by the security forces. 21 It was also said that the RRT failed to consider the question as at the date of its decision. There is no indication in the reasons for decision that it decided the question at a date other than that which is relevant, namely the date of the determination. 22 For the above reasons I am satisfied that none of the alleged errors of law have been made out. As indicated earlier, although separate submissions were addressed under another head as to procedural breaches under s 430 of the Act, counsel for the applicant agreed that these submissions turned essentially on a determination of the matters already considered above. The position therefore is that the applicant having been unsuccessful on those grounds, the procedural arguments also fail. 23 Accordingly, the application is dismissed with costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate: Dated: 11 November 1999

Counsel for the Applicant: C Colborne

Solicitor for the Applicant: Jayram & Associates

Counsel for the Respondent: R M Henderson

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 13 August 1999

Date of Judgment: 11 November 1999