Re Shanmugarajah Thavarajasingham v the Minister of Immigration, Local Government and Ethnic Affairs; LJ Smith and Peter Hughes [1990] FCA 39 (16 February 1990)

FEDERAL COURT OF AUSTRALIA

Re: SHANMUGARAJAH THAVARAJASINGHAM
And: THE MINISTER OF STATE FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC
AFFAIRS; L.J. SMITH and PETER HUGHES
No. G797 of 1989
FED No. 39
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Davies J.(1)

CATCHWORDS

Administrative Law - immigration - application for review of the decisions of the respondents denying status of refugee as defined in Article 1A(2) Geneva Convention Relating to the Status of Refugees 1951 - whether failure to give proper consideration to relevant matters - whether there was a "real chance" that the applicant would be persecuted if he returned to Sri Lanka - whether finding that applicant's fears of persecution was not "well founded" was unreasonable.

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss.5(1)(e), 5(2)(a), (b) and (g)

Migration Act 1958 (Cth), s.6(2)

Convention Relating to the Status of Refugees, Geneva 1951: Article 1A

HEARING

SYDNEY
16:2:1990

Counsel for the applicant: Mr G. Scragg

Solicitors for the applicant: Legal Aid Commission of NSW

Counsel for the respondent: Mr P.S. Hastings

Solicitor for the respondent: Australian Government Solicitor

ORDER

The subject decisions of the second and third respondents be set aside and the matter be remitted for reconsideration in accordance with law.

The first respondent be restrained from deporting the applicant from Australia until the reconsideration has been completed or until earlier prior order.

Liberty to apply for any further or other order as may seem meet is reserved.

The first respondent should pay the costs of the application.

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

DECISION

The applicant, Shanmugarajah Thavarajasingham, seeks orders of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") in respect of a decision of the third respondent, made on 9 June 1989, not to recognise the applicant as a refugee within the meaning of the Convention Relating to the Status of Refugees and also in respect of a decision of the second respondent, made on 11 August 1989, that the applicant not be granted an entry permit under s.6(2) of the Migration Act 1958 (Cth).

2. At the hearing, no issue was raised as to the jurisdiction of the Court to consider the challenged decisions under the ADJR Act. It is therefore unnecessary for me to consider the questions of jurisdiction which were discussed in Gunaleela v. Minister for Immigration and Ethnic Affairs (1987) 15 FCR 543 and Chan v. Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 63 ALJR 561.

3. Article 1A(2) of the United Nations Convention Relating to the Status of Refugees applies the term 'refugee' to a person who:

'... owing to 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'."

This definition was fully considered in Chan's case, in which judgment was given after the subject decision of 9 June 1989.

4. As Dawson J. pointed out, at p 567:-

"Upon any view, the phrase contains both a
subjective and an objective requirement.
There must be a state of mind - fear of being
persecuted - and a basis - well-founded - for
that fear. ... The differences which have
arisen have largely stemmed from a desire to
place a greater emphasis upon either the
subjective or the objective element of the phrase."

In Chan's case, the relationship between these subjective and the objective elements of the criteria was resolved by adopting the test of "real chance of persecution". At p 564, Mason C.J. said:-

"If an applicant establishes that there is a
real chance of persecution, then his fear,
assuming that he has such a fear, is
well-founded, notwithstanding that there is
less than a 50 per cent chance of persecution
occurring."

At p 568, Dawson J. said:-

"... I should express my preference for a test
which requires there to be a real chance of
persecution before fear of persecution can be
well-founded. ... A real chance is one that is
not remote, regardless of whether it is less
or more than 50 per cent."

At p 572, Toohey J. said:-

"The test suggested by Grahl-Madsen, 'a real
chance', gives effect to the language of the
Convention and to its humanitarian intendment.
It does not weigh the prospects of persecution
but, equally, it discounts what is remote or
insubstantial."

At p 582, McHugh J. said:-

"The decisions in Sivakumaran and
Cardoza-Fonseca also establish that a fear may
be well-founded for the purpose of the
Convention and Protocol even though
persecution is unlikely to occur. As the US
Supreme Court pointed out in Cardoza-Fonseca
an applicant for refugee status may have a
well-founded fear of persecution even though
there is only a 10 per cent chance that he
will be shot, tortured or otherwise
persecuted. Obviously, a far-fetched
possibility of persecution must be excluded.
But if there is a real chance that the
applicant will be persecuted, his fear should
be characterised as 'well-founded' for the
purpose of the Convention and Protocol."

5. In a valuable analysis, McHugh J. also examined the nature of persecution. At pp 582-3, his Honour said:-

"The notion of persecution involves selective
harassment. It is not necessary, however,
that the conduct complained of should be
directed against a person as an individual.
She may be 'persecuted' because she is a
member of a group which is the subject of
systematic harassment: .... Nor is it a
necessary element of 'persecution' that the
individual should be the victim of a series of
acts. A single act of oppression may suffice.
As long as the person is threatened with harm
and that harm can be seen as part of a course
of systematic conduct directed for a
Convention reason against that person as an
individual or as a member of a class, she is
'being persecuted' for the purposes of the
Convention. The threat need not be the
product of any policy of the government of the
person's country of nationality. It may be
enough, depending on the circumstances, that
the government has failed or is unable to
protect the person in question from
persecution. ... Other forms of harm short of
interference with life or liberty may
constitute 'persecution' for the purposes of
the Convention and Protocol. Measures 'in
disregard' of human dignity may, in
appropriate cases, constitute persecution. ...
Hence, the denial of access to employment, to
the professions and to education or the
imposition of restrictions on the freedoms
traditionally guaranteed in a democratic
society such as freedom of speech, assembly,
worship or movement, may constitute
persecution if imposed for a Convention reason: ..."

6. The applicant is a Tamil and a citizen of Sri Lanka. In recent years, there has been friction between the Tamils, who live principally in the northeast of Sri Lanka, and indigenous Sri Lankans who live in the more prosperous areas to the south. There has also been friction amongst the Tamils themselves, some Tamils favouring peace and cooperation and some favouring warfare and revolt. Fearing harm from other Tamils, the applicant escaped from Sri Lanka in 1985 and went to a refugee camp conducted by the Indian authorities. In about September 1987, hearing that the refugees might be repatriated to Sri Lanka, the applicant travelled to Frankfurt on a false passport and, on another false passport, flew to Sydney. On arrival at the airport, he disclosed his position and sought refugee status.

7. In statements that were before the decision-maker and before the Committee for the Determination of Refugee Status ("the DORS Committee), the applicant said:-

"I left Sri Lanka in August 1985 principally
because I feared the Tamil Tigers. I had been
a member of PLOT since 1983, putting up wall
posters, handing out notices and selling items
on behalf of PLOT. By the time of my flight
from Sri Lanka I was a well known supporter of
PLOT, especially as Kokuvil is a small town.
I also attended meetings and gatherings.
There were problems between PLOT and the
Tigers from the very beginning, which got
worse as time went on. I helped PLOT openly,
and the Tigers knew I supported PLOT.
The Tigers used to 'take' people from other,
rival groups and torture them. I knew that
through the media, and personal experience.
Some were released after torture, and warned
not to support any group other than the
Tigers. Some were never heard from again.
One friend of mine, Mr Selvakumar, was
captured by the Tigers in or around April/May
1985. He was only released when his parents
pleaded with the Tigers to release him. He
was bruised and had abrasions. He was also a
supporter of PLOT.
In July 1985, members of the Sri Lankan Army
came to my home looking for me. I was not at
home at the time. Two days later, the Tigers
came to my home, looking for me, but again I
was out. They told my family that they wanted
to see me, that they would return, and that I
had better be there when they returned. My
parents were frightened, and they suggested
that I leave Sri Lanka.
My parents paid for me to be taken to India by
boat. I left Sri Lanka two or three days
after the Tigers came to my home.
...
While I was in the camp in Trivandram, I
received information by letter from my family,
that the Tigers had paid a second visit to my
home after I left, saying they would catch me
and deal with me. I fear the Tigers very
much, because I am known to them personally.
One one occasion, when I was helping PLOT, I
was approached by a gang of Tigers, who warned
that I should only support the Tigers.
I fear that if I return, they will torture me
or kill me. This has happened to another
friend of mine - Mr Chandran. He was captured
in February of this year, and I was informed
by some friends from Germany that his dead
body has recently been returned to his parents
by the Tigers. He was 'taken' by the Tigers
in February, and we had no news of him until
this report of his death. He was apparently
covered with torture marks.
...
I received a letter from my mother (dated
13.12.88), in which she informed me that one
of my cousins, who had also been a PLOT
supporter, had been seized, at our home, and
taken away by a group of Tigers.
My mother is a widow, and lives with one of my
sisters. They had invited my cousin to stay
with them for protection. He would come over
in the afternoon, stay overnight, and go home
in the morning. I think that the cousin in
question, is Kanagaratnam Siva, because he was
involved with PLOT, and also he lives close to
our home (so it would be easy for him to come
and go there). He is nineteen years old.
According to my mother, the Tigers believe I
am sending PLOT literature and posters to Sri
Lanka, and are very keen to get hold of me,
should I return.
...
I do not speak sinhalese, have never lived in
Colombo or the south of Sri Lanka, and I
neither friends, nor relatives there. If I
were forced to return to Sri Lanka, I could
not remain in Colombo (I would have great
difficulty in finding employment, and could
not remain there without support). I would be
at risk from the anti-Tamil JVP. In short, I
would be forced to re-join my family in the
north, where I would become an easy target for
the L.T.T.E. who have continually expressed an
interest in my whereabouts.
...
Although I was only a supporter of PLOT, I
believe I am at a greater risk than members
because I do not have the full protection of
the organisation, I cannot physically protect
myself (never having been involved in violent
activities), and if the L.T.T.E. can wipe out
the 'grass-roots' support for the
organisation, it would be difficult for it to
survive. Being a supporter, I am less-well
protected than actual members, and more easily
'picked-off'."

8. As can be seen from the above, the applicant contended that he had left Sri Lanka after one of his friends, Mr Selvakumar, had been taken by the Luberat Tamil Tigers of Ealem ("LTTE") and beaten. After the applicant escaped to India, another friend, Mr Chandran, died after being taken and tortured. Subsequently, a young cousin, who had been asked to live with the applicant's mother in the absence of the applicant, was taken by LTTE and his whereabouts are unknown. LTTE continued to show an interest in the applicant and in his home.

9. There were also before the decision-maker and before the DORS Committee, a number of letters from the applicant's mother. Counsel for the respondents did not suggest that the letters had been concocted to improve the applicant's case.

10. In a letter of 28 February 1988, the applicant's mother said:-

"Whatever happens, please do not come here as
your life would be at risk. I think we are
going through a bad period. Something bad
happens to us one after another. India is
sending the refugees back home. At about 7.30
pm on the last Saturday of the previous month,
armed Tigers came to the home in search of
you. They thought that you too would have
been sent home by the Indian government. When
I saw them armed, I was very frightened.
After making a thorough inquiry, they left. I
was very much relieved when they left. I do
not know how much longer we have to live in
fear. Therefore, please do not come here.
Try your best to stay there. I heard that
your friend Chandran was kidnapped by the
Tigers last week. He has not yet returned.
You would have read recently in the papers
that some members of the PLOT organisation
were killed by the Tigers in the Eastern province."

11. In a letter dated 6 August 1988, the applicant's mother said:-

"Tigers come in search for you very often.
They have kidnapped some other young boys as
well. They shot and killed Chandran. Before
this I wrote to you saying that he had been
kidnapped. Recently they brought his body and
handed it over in their house. When the house
people asked them why was he shot, and they
replied that he tried to escape from us and we
shot and he was dead. I also went for the
funeral. I could not see his body as there
were marks everywhere in is body which was due
to torturing. They had be torturing him very
badly. When I saw this I remembered you. You
escaped because you were not here. Even if
you are not here, if you are alive somewhere
that is enough for us. I had to thank God for
this.
Due to the frequent fighting between Militants
and Indian forces the innocent people and the
supporters are mostly affected. Now EPRLF
identify the people who support the PLOT and
their members to the Indian Army. Because of
this many of them have been arrested by the
Indian Army."

On 13 December 1988, the applicant's mother wrote:-

"There are lot of robberies at night here and
some militant groups enter houses demanding
money and things at gun point. So we asked
our cousin to come and stay with us to help.
Last Wednesday a group of Tigers came home
with our cousin and asked him to open the room
which he occupied. They found a lot of hand
outs, wall posters and books relating to a
militant group in his bag. Then they
questioned us separately about you and others.
They said that you were also involved and that
you were the one who was sending all those
things to him. They said they had been
suspicious about him and that was proof. They
said they had caught one of your friends and
not to think tha you had escaped from them,
and they would catch you one day and you would
have to face the same fate as others who
behaved like you. They said that you were
acting against their movement. They said that
anyone who acted against their movement would
be destroyed and they took our cousin with them.
Until that incident we hadn't known that he
was involved. If we had known about this we
would never have asked him to come and stay
with us. Now we are so scared. We don't know
what they are going to do with him, and can't
do anything to help him. Only God can help
him. The situation here is still bad. Fights
between the groups take place daily."

There were also before the DORS Committee and the decision-makers other letters and extracts from newspapers and journals and the like which, in general, confirmed the ferment in Sri Lanka.

12. The DORS Committee considered the applicant's position more than once. There are in evidence minutes of its meeting of 29 May 1989. The view of the representative of the Department for Immigration, Local Government and Ethnic Affairs was, inter alia:-

"We have previously noted, and agreed, that the
applicant's local activities for PLOTE were of
a low-level nature. He certainly escaped the
attention of both the Sri Lankan security
forces and the LTTE before his departure to
India in 1985, although the LTTE did come to
his house once when he was out. On the
evidence of family letters, the LTTE continue
to maintain their interest in him.
Mr Thavarajasingham claims that friends have
suffered, and been killed, as a result of
their PLOTE activities. It is not considered
that this has any bearing on the applicant's
claims, given the previous lack of interest in
him by the LTTE, and specifically in the case
of Mr Chandran's death, which transpired after
the applicant's arrival in Australia in 1988,
there is no evidence to suggest that this
occurred as a result of PLOTE activities:
- of more relevance is the exemplar of
another friend, Mr Selvakumer, who was
detained by the Tamil Tigers at the same
time in 1985 that Mr Thavarajasingham was
involved in supporting PLOTE activities.
Mr Selvakumer was ultimately released,
bruised and abraded, following the
intercession of his parents with the
Tigers. The applicant himself may well
have suffered similar consequences at
this time, but chose instead to remove
himself from Sri Lanka in later 1985.
Given the LTTE's general lack of interest in
the applicant during the last two years of his
support for PLOTE as well as the nature of his
political activity in that time, there is no
apparent rationale for the claimed increased
interest in him shown by the LTTE subsequent
to his departure. Further, there is no
apparent reason for the LTTE to continue that
interest up to the present time, particularly
as he is no longer involved with PLOTE and has
not lived in Sri Lanka since 1985."

13. As can be seen, this view did not apply the "real chance" test which was subsequently laid down in Chan's case. The DILGEA representative accepted that the applicant may have been detained by LTTE had he stayed in Sri Lanka and that, on the evidence of the family letters, LTTE continued to maintain their interest in him but thought that the applicant's claims that friends had suffered and been killed as a result of their PLOT activities did not have any bearing on his claim and that Mr Chandran's death was irrelevant. The representative did not mention the position of the applicant's cousin. It is impossible to reconcile such an approach with the reasoning enunciated in Chan's case.

14. The view of the representative from the Department of Foreign Affairs and Trade was that the security situation in Sri Lanka was slowly deteriorating but that the main targets for LTTE attacks were certain groups with which the applicant was not associated and that, if he returned to Sri Lanka, the applicant would face the same threat faced by all Sri Lankans. The DFAT representative did not consider it plausible that the LTTE would have any interest in an individual with a level of political activity as low and as distant in time as that of this applicant. Yet, on the evidence of the letters, the applicant was personally at risk. He did not suffer merely the same threat as was faced by all Sri Lankans. He was a Tamil who had engaged in political activities and he had escaped from Sri Lanka to a refugee camp when he thought himself at risk.

15. The view of the representative of the Attorney-General's Department was that the "Applicant's claims do not come within the terms of the UN Convention". However, this statement demonstrates that an incorrect understanding of the Convention. If his claims were accepted, the applicant was entitled to be classed as a refugee.

16. The third respondent, Mr Peter Hughes, accepted the recommendation of the DORS Committee that refugee status be refused. The reasons for Mr Hughes' decision have not been placed in evidence. However, in accepting the recommendation of the DORS Committee, Mr Hughes made no note against the reasoning of the Committee. I therefore conclude that his reasons accorded substantially with those of the members of the Committee. It therefore folows that there was an error of law in Mr Hughes' approach to the determination of the applicant's status as a refugee. His decision must be set aside and the matter remitted for reconsideration in accordance with law.

17. That conclusion necessarily brings down the decision of the second respondent, Mr L.J. Smith, on 11 August 1989, that the applicant not be granted an entry permit. A relevant matter for Mr Smith's consideration was whether or not the applicant was a refugee as defined in the Convention. Mr Smith proceeded on the footing that he was not and dealt with the matter before him accordingly. His decision must be set aside so that it can be reconsidered in the light of any new determination with respect to the applicant's refugee status.

18. It is therefore unnecessary to consider other grounds of challenge made to Mr Smith's decision. Much of the argument on these points had been stated already with respect to the decision on refugee status. However, it may be useful to note one aspect of Mr Smith's decision. In his reasons for decision he stated, inter alia:-

"I have taken account of Mr Thavarajasingham's
claims that friends and his cousin have
suffered and been killed as a result of the
PLOTE activities. However, in the specific
cases cited, there is no evidence to link Mr
Chandran's death with support of PLOTE. The
incident involving his friend Mr Selvakumar a
PLOTE supporter who was kidnapped by the LTTE
in 1985, does not support Mr Thavarajasingham's
claims as Mr Selvakumar was later
released. I do not accept the kidnapping of
Mr Thavarajasingham's cousin as an indicator
of Mr Thavarajasingham's fate should he return
to Sri Lanka, given the LTTE's apparent lack
of interest in Mr Thavarajasingham during the
two years he supported PLOTE, the relatively
low level of his support and his absence from
Sri Lanka for the last four years.
I have taken into account Mr Thavarajasingham's
concerns regarding his support of PLOTE,
the enmity (and reasons for that enmity) which
exists between the LTTE and the member groups
of the TRI STAR alliance. However, taking
into account the proceeding paragraphs, I am
not reasonably persuaded that Mr Thavarajasingham
faces torture and death from the LTTE and a
lesser danger from the Sri Lankan authorities
even should he return to his home town."

19. On the face of it, the material before Mr Smith was strong evidence that the applicant had been in danger from LTTE and that, because of that danger, he had fled Sri Lanka and gone first to India and then to Australia as a refugee. To reject Mr Chandran's death and the kidnapping of Mr Selvakumar and his cousin as irrelevant or insignificant events was unreasonable, for no adequate reason for rejecting these matters as strong evidence favouring the applicant was given. Mr Smith was not bound to accept the applicant's contentions; yet the applicant's statements, the letters and the supporting material had such cogency that to put them aside without good reason was unreasonable and his decision was flawed by a failure to give proper consideration to the relevant matters. See Independent FM Radio Pty Ltd v. Australian Broadcasting Tribunal & Anor (1989) 17 ALD 529 and Pashmforoosh v. Minister for Immigration, Local Government and Ethnic Affairs (Davies, Burchett & Lee JJ., delivered 28 June 1989).

20. It follows that the subject decisions will be set aside and the matter remitted for reconsideration in accordance with law. I shall order that, until that reconsideration is complete or until earlier prior order, the first respondent be restrained from deporting the applicant from Australia. I shall reserve liberty to apply for any further or other order as may seem meet. The first respondent should pay the costs of the application.