Re Sutharshan Atputharajah v the Minister of Immigration Local Government and Ethnic Affairs [1990] FCA 109 (10 April 1990)

FEDERAL COURT OF AUSTRALIA

Re: SUTHARSHAN ATPUTHARAJAH
And: THE MINISTER OF STATE FOR IMMIGRATION LOCAL GOVERNMENT AND ETHNIC
AFFAIRS
No. W G31 of 1990
FED No. 135
Migration

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J.(1)

CATCHWORDS

Migration - forged passport - refusal of entry - claim for refugee status - claim refused - application for judicial review - claim for interim stay of removal order - Sri Lankan national - Tamil origin - communal violence - real fear - not refugee - no evidence of error - claim for extension of stay refused.

Migration Act 1958 (s.89(2)

HEARING

PERTH
10:4:1990

Counsel for the Applicant: Mr B.F. Stokes

Solicitors for the Applicant: B.F. Stokes and Associates

Counsel for the Respondent: Ms. I. Petersen

Solicitors for the Respondent: Australian Government Solicitor

ORDER

The applicant's claim for the extension of interim relief be dismissed.

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

DECISION

Sutharshan Atputharajah is a 22 year old Sri Lankan national of Tamil ethnic origin who arrived in Western Australia on a forged passport and under the false name Joseph Lappen on 29 December 1989. At the airport the forgery was detected and he was taken into custody under s.89(2) of the Migration Act 1958. On 4 January 1990 he made application for refugee status saying that in July 1989 he had been captured twice by the Eelam Peoples Liberation Front ("EPRLF"), a Tamil resistance movement, to be trained as one of their soldiers. He had escaped after two days on the first occasion. On the second, he was rounded up on a street corner with other youths but escaped after a couple of hours. Two of his friends who tried to escape were shot. Thereafter he lived in fear of the EPRLF. He complained also of discrimination against Tamils by the Singhalese and harrassment by the Indian Peace Keeping Forces trying to locate members of another Tamil group known as the Tamil Liberation Tigers.

2. He expressed the fear that if returned to Sri Lanka he could be hunted down by the EPRLF and shot as a deserter. He said that the Tamil Tigers would try to recruit him forcibly and that if he refused to join them he would be shot because of their fear that he would betray them. If he were returned to Sri Lanka he would have to hide and would live in constant fear. It would not be safe for him in Jaffna, which was his home town. He would have to work in Colombo to support his family. His father has a weak heart and his sister has a hole in her heart. It would be difficult to get employment in Colombo because of discrimination against Tamils. It would also, he said, be easy for the EPRLF and the Tamil Tigers to locate him there. He had telephoned his uncle in Sri Lanka on 1 January, but had been told that it was still not safe for him to return.

3. On 15 January the applicant underwent a lengthy interview with an officer of the Department of Immigration and Ethnic Affairs, one Kate Birrell. This interview was carried out in the presence of an interpreter and a solicitor representing the applicant. A more detailed history of his experiences with the EPRLF and his subsequent flight from Jaffna to Colombo on 17 July 1989 was given. Initially, he said, he had little problem in Colombo and even undertook some studies. Subsequently, however, he heard from friends that two members of the EPRLF were looking for him. This was about mid-November. He was then living with a friend of his father. At the beginning of December he decided to leave the country. He found a man who dealt in forged passports and purchased one from him for 150,000 rupees (about $4,500). He was aware that the government had set up protective camps for young Tamils seeking to avoid conscription in the north, but did not trust that option because it involved giving full personal particulars to government officials which could fall into the wrong hands. Nor did he want to be seen as identified with members of the Tamil Tiger movement. He was advised against entering the camps by his father and his uncle.

4. The application for grant of refugee status was considered by the DORS Committee whose members were also circulated with material provided by the applicant's solicitors. Included in that material were statements and correspondence from Amnesty International and a statutory declaration from the applicant's father, as well as a letter in support of the application from the Sri Lankan Tamil Welfare Society. The minutes of a meeting of the Committee held on 2 February, prior to the circulation of the additional material, indicate a unanimous view that the applicant, while facing a situation of insecurity and communal violence common to all Sri Lankans, was not a refugee within the terms of the Convention. The members of the Committee concluded also that it would be unlikely that he would be the subject of any special search by the EPRLF. It was also not accepted that he faced any real threat from Tamil Tigers. Those views were not changed by the additional material which was considered by members after the meeting of 2 February. In the event, the Committee's recommendation was against the grant of refugee status and that recommendation was accepted.

5. On 30 March a letter was sent to the applicant care of his solicitors in the following terms, signed by the Minister's delegate, Mr Peter Hughes:

"Your application has been examined by the
Determination of Refugee Status (DORS) Committee
comprising representatives of the Department of
Immigration, Local Government and Ethnic Affairs,
Foreign Affairs and Trade, Attorney General's and
Prime Minister and Cabinet. A representative of
the United Nations High Commissioner for Refugees
participates as an adviser to the Committee.
The DORS Committee recommended against the granting
of refugee status to you. As the Minister's
delegate I considered the Committee's
recommendation and the relevant circumstances of
your case and have decided to refuse your
application for refugee status."

On Sunday, 8 April, an order was made for the return of the applicant to Sri Lankan on Malaysian Airlines under s.89 of the Migration Act 1958. At a hearing arranged at short notice on Sunday evening, where the respondent was represented by one of its officers, not legally qualified, I granted a temporary stay of that order and adjourned the matter until 4.30 pm on Monday 9 April for further argument on whether the stay should be extended. On 9 April, a substantive application for review and a supporting affidavit were filed. Upon the return of the claim for interlocutory relief, the respondent was represented by counsel who tendered various departmental documents, including the minutes of the DORS Committee and views expressed by its members on the subsequent materials. I have perused all of these papers and taken account of the arguments addressed to me by counsel yesterday. Although various grounds were canvassed in the application and in argument upon the Departmental materials, I have detected no basis for review that would not involve simply substituting my own view of the merits of the case for those of the delegate. I come to that conclusion with some regret. There is little doubt and it appears to have been accepted by the DORS Committee that the applicant probably was the subject of attempted forced recruitment as he claims and that the EPRLF "is notorious for forcible conscription of youths into the Tamil National Army and for the careless brutality with which the conscripts are treated". Nevertheless the Committee appears to have come to the conclusion that the EPRLF's fortunes are on the wane and that they are unlikely to have either the inclination or the resources to engage in hunting for the applicant in Colombo. Nor does he, it is said, face any real threat in the south from the Tamil Tigers. There was, according to the Committee members no well founded fear of persecution as required by the definition of refugee under the relevant Convention. While I have every sympathy for the applicant and his fellow Sri Lankans in the difficulties they face and the real fear of communal violence, it is beyond the power of this Court on an application of this kind, to do more than review the impugned decision or conduct for any element of unfairness, irrationality or error of law. In my opinion no case of such error has been shown which would justify me in further extending the stay order. On that basis the claim for the extension of interim relief will be dismissed.