Thangavel v Minister for Immigration & Multicultural Affairs [2000] FCA 53 (4 February 2000)

Last Updated: 7 February 2000

FEDERAL COURT OF AUSTRALIA

Thangavel v Minister for Immigration & Multicultural Affairs [2000] FCA 53

MIGRATION - application for a protection visa - whether reasons of Refugee Review Tribunal failed to set out findings on questions of material fact - whether failure to give reasons

Migration Act 1958 (Cth) ss 430, 476(1)(a)

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, followed

KUMARESAN THANGAVEL v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NO. N631 OF 1999

O'CONNOR J

4 FEBRUARY 2000

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N631 OF 1999

BETWEEN:	KUMARESAN THANGAVEL APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	O'CONNOR J
DATE OF ORDER:	4 FEBRUARY 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be allowed with costs.

2. The decision of the Refugee Review Tribunal be set aside.

3. The matter be remitted to the Refuge Review Tribunal for determination in accordance with law.

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	N631 OF 1999

BETWEEN:	KUMARESAN THANGAVEL APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	O'CONNOR J
DATE:	4 FEBRUARY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an application to review the decision of the Refugee Review Tribunal ("the Tribunal") of 28 May 1999. The Tribunal affirmed the decision of the delegate of the Minister for Immigration and Multicultural Affairs refusing to grant the applicant a protection visa.

2 The grounds of the application relied on at the hearing of the matter were that:

1. Procedures that were required by the Migration Act 1958 (Cth) to be observed in connection with the making of the Tribunal decision were not observed in that the Tribunal failed to produce a statement in accordance with s 430 and therefore s 476(1)(a); and

2. The Tribunal failed to make material findings of fact as to what might happen to the applicant on his return to Sri Lanka; failed to give reasons as to why what might happen to the applicant would not constitute persecution; failed to give reasons as to why what might happen to the applicant would or would not be for a Convention reason.

Background

3 The applicant, a citizen of Sri Lanka, arrived in Australia on 26 January 1996. On 26 April 1996 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958, which was refused.

4 The applicant has stated that:

a) He speaks, reads and writes both Tamil and English, and that he speaks and reads Sinhala. He was born and educated in Badulla. He was resident in Batticaloa from 1983 to 1992.

b) When communal riots broke out in July 1983 his family's house was burned. Subsequently the family resided in a camp at Badulla for five months, until December 1983 when they joined an uncle in Batticaloa.

c) His family were supporters of the Tamil United Liberation Front (TULF), and helped that political party, for example by attending meetings, putting up posters and involving themselves in membership recruitment.

d) In April 1986 there was a round-up in the area and 120 Tamil youths, including himself, were taken into custody on suspicion of involvement with the LTTE. They were taken to a Sri Lankan army camp in Kalmunai where they were questioned about the LTTE, and whether there were LTTE cadres in the area. They filled sandbags, dug bunkers and cleaned the camp. After three weeks they were released. The applicant's uncle had spoken to the army officials and made a payment for his release.

e) In January 1987 there was a bomb blast close to their home which killed five members of the security forces. The applicant later learned that the blast had been a landmine laid by the LTTE. The following day security forces came and searched house to house and arrested approximately eighteen Tamil youths, including the applicant and three of his brothers. The security forces assaulted them with PVC pipes and gun butts. His brother's leg was broken and one Tamil youth had a tyre put around his neck and was burned to death. The applicant, his brother and others were taken to hospital the next day and returned to camp two days later. They were again assaulted and forced to sign a blank paper. After three weeks the district TULF chairman came with the village headman and secured their release, arranged by the applicant's uncle. After release they remained in hospital for two weeks.

f) After returning from hospital, six LTTE members came to the family house and questioned them as to whether they had given information about the LTTE to the army. They were assaulted and warned to support the LTTE, and not the TULF. The applicant and two of his brothers were taken to their camp and questioned further. The LTTE took some gold sovereigns and gold chains and before they were released, they had to agree to pay 1000 rupees every month and to supply food parcels.

g) At district council elections the applicant and his brothers supported the district TULF chairman who had helped secure their release from the army camp. The chairman was killed by the LTTE in March 1988. Because of the death of the TULF leader, they then supported the EPRLF during the district council elections. Just prior to the election, the LTTE began to abduct and kill members of opposing Tamil groups TULF, EPRLF and TELO. One of his brothers went missing at this time and the family believed that he had been abducted and killed by the LTTE.

h) In December 1988, for his safety and at his mother's urging, the applicant went to Colombo. He travelled by bus and train and on the way went through army and police checkpoints where he was questioned and asked to show his identity card. He stayed with a friend at Wattala and began work in a textile shop in Wellawatte.

i) One evening in October 1990 he was stopped at a checkpoint on the way home from work by bus. When the travellers' identification papers had been checked it was found that two people were from Jaffna, one from Batticaloa and one from Wattala. The applicant and three others were then taken to Galle Face army camp. They were stripped, beaten and questioned and asked whether they were Tigers. The questioners were drunk and did not believe the applicant, and threatened to kill him if he did not tell the truth. They also threatened to cut off his hand. His hand was injured and one of his fingertips was cut off.

j) The next day the applicant was questioned further by different army personnel. He was handed over to police who told him that he would be detained at the police station until reports were received from the army camps where he had been detained previously. He was imprisoned at Welikade prison until December 1991, for a total period of one year and two months. Conditions were bad in the prison as they were suspected to be LTTE members. The reports arrived and his uncle then gave a large sum to the police for his release. After his release, the applicant had to report each week to the police station.

k) The applicant's mother arranged to sell property and jewellery to finance his travel to Indonesia. On 13 January 1992 he left Sri Lanka to travel to Indonesia via Singapore. After arrival in Jakarta he obtained a job in a factory, where he worked for nearly three years, extending his visa on several occasions. He had departed Sri Lanka legally and had not experienced any difficulties in obtaining a travel document.

l) In June 1992 the applicant lost his passport and without difficulty obtained a new one in Indonesia.

m) While working in Indonesia, he went to Sri Lanka twice to see his mother as she was elderly and ill. When he arrived at the airport in Colombo he was asked where he was going and why. When he explained he was going to see his sick mother he was told that because of the fighting he could not go to her. He had to pay 5,000 rupees to the officials at the airport in order to proceed, and a further 5,000 rupees at the bus stand to Batticaloa. His uncle then told him it was too dangerous for him to travel to Batticaloa so he stayed in Colombo for eight days and did not see his mother. He then returned to Indonesia.

n) In December 1994 the applicant returned again to Sri Lanka, for his sister's wedding and to visit his sick mother. He stayed in Colombo where the wedding took place. On 8 January 1995, the day after the wedding, while still staying at his cousin's house in Wellawatte, the applicant was detained by police. He was held overnight at Wellawatte police station and asked why he had come to Sri Lanka. He was assaulted by three police officers and accused of being a Tiger. He was struck with sand-filled PVC pipes and kicked. In the morning his uncle came to the station and made a large payment to the Officer in Charge at the police station in exchange for the applicant's release. He was told to report each morning to the police, which he did for the five days remaining of his stay. He left on 14 January 1995 and had to pay a further 5,000 rupees to immigration officers at the airport.

o) In the middle of 1995 the applicant's mother, younger sister and older brother moved back to Badulla, because of problems they were experiencing with the Sri Lankan army and with Tamil militant groups.

p) After a further year in Indonesia, the applicant's employer closed his business. The applicant applied for a visa to come to Australia, with a letter of sponsorship from his brother in Australia and a letter from the applicant's employer. He travelled to Australia in late January 1996. The employer's letter dated 10 January 1996 stated that the applicant had been an employee since 1990.

q) On 8 November 1996 the applicant's mother was alone in the house when a man came in, demanded money and then killed her. The applicant believes that his mother was killed because of the ongoing conflict in Sri Lanka and it is possible she was killed by a representative of the LTTE who had demanded money from her. The applicant now fears for the life of his sister and brother. Evidence of his mother's murder was submitted in the form of a letter in Sinhalese with English translation (and dated 16 November 1996), said to be from the Badulla police station. It is addressed to the applicant's brother in Badulla, and states that the brother and sister are cooperating with the police in relation to their mother's murder on 8 November 1996. A copy of an untranslated death certificate was attached.

r) The applicant had left Sri Lanka to protect himself because he is a Tamil and because of his (unspecified) political opinion and that he fears harm from the armed forces and LTTE.

s) The applicant fears he will be detained and tortured if he returns to Sri Lanka. The authorities have shown an ongoing interest in the applicant. While visiting Sri Lanka he was detained and tortured. On several occasions the Sri Lankan authorities have accused him of being a Tamil Tiger. Tamils, including the applicant, face persecution because of their ethnicity, which is identified with the LTTE by the Sri Lankan authorities. He has therefore been imputed with a political opinion that is not tolerated by the authorities.

t) The applicant cited information concerning the situation in Sri Lanka in 1996, including that Tamils continue to be arrested in Colombo; Colombo guest houses and lodges are a particular target for searches by security forces; and human rights violations have been committed by security forces in the Jaffna Peninsula. Tamils as a group will continue to face arrest, detention, interrogation and torture.

u) The applicant fears persecution at the hands of a non-governmental agent, the LTTE. The LTTE have made threats against him and killed his brother. The LTTE has a history of persecuting the populace, and the authorities have been unable to prevent this.

v) It was submitted that the applicant's fear of persecution is neither far-fetched nor remote but that given his personal circumstances, he has a well-founded fear of returning to Sri Lanka.

5 The following information was included on the departmental file:

a) Results of enquiries made through the Australian Red Cross in June and July 1997 with the consent of the applicant in relation to his claimed detention in Galle Face army camp and Welikade prison during the period October 1990 to December 1991. The Australian Red Cross advised the Department that it had been advised by the ICRC in Sri Lanka that:

"... the ICRC commenced its activities in Sri Lanka in October 1989. According to our knowledge Galle Face Army camp is the Army Head Quarters and, normally, detainees aren't kept there. The ICRC started to visit Welikade prison in the beginning of January 1991 and still continues to do so."

b) A file note based on a conversation with the Australian Red Cross records that the ICRC fax also stated that the ICRC had checked their records and there was no record of the applicant having been at Welikade Prison and that therefore a Detention Certificate could not be issued.

c) The Department pointed out an inconsistency between the dates on which the applicant claimed to have been employed when compared to the dates the applicant claimed to have left Sri Lanka.

On 31 July 1997 the Department put it to the applicant that records held by the International Committee of the Red Cross do not record the applicant as having been in Welikade prison.

On 9 August 1997 the applicant replied that his employer had stated that he was employed since 1990, although he had only worked from 1992, in order to help the applicant obtain the visa to go to Australia. This was done to convince the authorities that by working for a longer period, he would return. The applicant enclosed a letter from the same employer dated 8 August 1997 which states that the applicant was in employment with the company from July 1992 to January 1996.

In his reply, the applicant suggested that the ICRC should investigate the records of the Boralla police, as the Boralla police handed him over to Welikade prison and that he was released by the Boralla police once they were bribed by his uncle.

d) The applicant's current Sri Lankan passport is on the Departmental file. It was issued by the Sri Lankan embassy in Jakarta on 26 June 1992 and records that it replaces a passport issued to the applicant in Colombo on 6 December 1990 which had been cancelled and returned to the applicant as it bears a valid visa for Indonesia. The passport records visits to Sri Lanka from 14 December 1993 to 22 December 1993 and from 31 December 1994 to 14 January 1995.

COUNTRY INFORMATION

6 The Tribunal included the following country information in its reasons.

"It has also been submitted by the adviser that, in effect, all Tamils face a real chance of persecution for a Convention reason at the hands of the security forces.

Tamils generally are affected by general security operations or the need to identify themselves at checkpoints, whether or not they are targeted. In defining the concept of persecution in refugee law in relation to abrogation of the core human rights which have been recognised by the international community, Hathaway distinguishes those rights which are derogable in case of a national emergency, including freedom from arbitrary arrest or detention and the right to internal movement and choice of residence [references omitted]; [...] also see the International Covenant on Civil and Political Rights, in particular Article 4.1). Thus general security measures in force during a period of declared emergency (including security sweeps, checking of identification and even short-term detention while identity is established) do not necessarily of themselves amount to persecution, even though they may not accord fully with normal human rights safeguards. This is not to suggest that all measures taken during such times are acceptable or non-persecutory.

The Government's distinction between the Tamil community in general and the military threat posed by the LTTE has been maintained notwithstanding the LTTE's renewal of the armed conflict in 1995. In announcing new constitutional proposals in August 1995, the President stated that they were based upon "unqualified acceptance of the fact that the Tamil people have a genuine grievance to which a solution must be found" (Far Eastern Economic Review, 17 August 1995, pp. 17- 18, "Looser Reign"). The President subsequently repeated that the Tamil people are crying out for a just solution of their problems and that the country must have an effective package of devolution which is acceptable to all (Sydney Morning Herald, 4 November 1995, p. 23, "Refugee crisis looms ..."). The Sri Lankan Government has made it clear that it regards the security threat as the LTTE, not Tamils as such. The President has stressed that the war is against the LTTE and not the Tamil community and that "We must in no way harass the Tamil community by word or deed" (The Weekend Australian,25-26 November 1995, p. 18), while in June 1995 Sri Lanka's Foreign Minister (himself a Tamil) stated that "The message we are sending to the armed forces is that the Tamil people are not the enemy. It is the (Tamil Tigers) who are the enemy" (The Age, 5 June1995, "Sri Lanka: Terror Tears Island Apart").

The Canberra office of the United Nations High Commissioner for Refugees has advised that: "Although Tamils are mainly affected by this searches and round-ups, we believe that these government activities do not aim at Tamils in general but at LTTE cadres who are by definition Tamils. The searches and round-ups, therefore, do not constitute harassment or persecution of a particular ethnic group but a legitimate Government reaction vis-a-vis the threat of terrorist LTTE suicide squads"(UNHCR advice to Swiss Appeal Board, provided to RRT by UNHCR, 14 December 1993.)

UNHCR confirmed in January 1996 that: "Tamil population by reason of their ethnic origin alone reportedly do not face any serious problems in Colombo and the other areas under government control, although many Tamils perceive the frequent ID checking, round-up, temporary detention and house searching as discriminatory harassment ... In UNHCR's view the institutional and legal mechanisms to monitor and prevent human rights violations are functioning." (Sri Lankan Asylum-Seekers - Current Guidelines, UNHCR-Geneva, ref. AUL/MSC/0031, 4 January 1996, CISNET CX13715).

A press report sourced from Colombo supports the above reporting:

"Many Tamils are being rounded up for questioning in Colombo and elsewhere in the search for Tigers who might be on bombing missions to avenge the loss of their de facto homeland. However, old patterns of torture, beatings and extra-judicial killings are not being repeated. Police and troops have been warned not to sully military victories with human rights abuses".(The Australian, 6 November 1995, p. 145, "Tigers pull out of battle for Jaffna").

The Australian High Commission in Colombo has reported (DFAT cableO.CL463 of 24 January 1997, CISNET CX21595):

"All our contacts said that these days they heard very few reports of serious mistreatment in detention in Colombo. The HRTF and [NGO body] "Inform" thought this development might be attributable to a combination of improved police practices and greater demand for police accountability. Another factor may be the number of fundamental rights cases where the Supreme Court has found mistreatment in detention by the police to be a violation of an applicant's fundamental rights. In each case the court has levied large fines on the police officer concerned. In response to these cases, the Inspector General of Police announced that police facing charges of fundamental rights violations will not be eligible to sit for promotion exams.

The situation as reported in 0.CL38234 remains current. As a consequence of the security threat coming from a Tamil nationalist militant organisation, Tamil people in Colombo are subjected to a greater degree of surveillance and suspicion than non-Tamil people. They experience a higher level of insecurity than non-Tamils, but the overall assessment of local and international human rights observers continues to be that while the security operations cause inconvenience and anxiety to Tamils in Colombo, provided they are properly conducted, this does not amount to harassment or physical danger. Subject to a few exceptions noted above, almost all of our contacts acknowledge that the government's response to the very serious LTTE security threat is understandable.

Our assessment remains the same as in para 10 of 0.CL38234: while Tamils may be more affected than non-Tamils by the security measures in Colombo designed to counter the LTTE security threat, this does not amount to officially-sanctioned discrimination or harassment of Tamil people as a group. Tamil people, like anyone else, continue to have the protection of the law against unlawful activities by security services."

This was confirmed in more recent reporting, for example in DFAT cable CL855 of 22 April 1998 (CISNET CX29633):

Tamils in Colombo

During March [1998] the security forces markedly increased large-scale cordon and search operations, spot checks and questioning of Tamils in Colombo. The number of people arrested and detained increased sharply. The large-scale operations, which have now ceased, were intended to uncover infiltration of Colombo by the Liberation Tigers of Tamil Eelam (LTTE), and thereby stem LTTE attacks on the city. The procedures caused considerable inconvenience and embarrassment to thousands of Tamil civilians.

The increase in security procedures followed a series of recent bomb attacks in Colombo and Kandy by the LTTE: World Trade Centre/Galadari Hotel, the Temple of the Tooth, Slave Island and Maradana. The bombings exposed the vulnerability of the city to terrorist attacks, and created an expectation that there are more to come. As a result, the security forces were under enormous pressure to intercept possible LTTE attacks, but they were hampered by alack of good information on LTTE activities in Colombo. Initially they approached the threat by conducting blanket searches of the Tamil community rather than targeted operations based on good intelligence. In some areas of Colombo, police and the armed forces created their own rules for identity checks and freedom of movement, causing confusion and uncertainty within the community about what documentation was required.

The large-scale search operations stopped in late March after public agitation and strong representations by Tamil politicians. At a meeting with the Attorney-General and chiefs of armed services, Tamil politicians called on the government to standardise security procedures in order to reduce public inconvenience and uncertainty. They sought strict enforcement of presidential directives, such as the issue of receipts for all persons arrested, which were designed to protect civilians from possible abuse under the sweeping powers conferred on police by the emergency regulations. To prevent repeat arrests, Tamil politicians also sought a method of recording identity checks and clearances. They also demanded an end to the photographing and arrests of residents during late night searches, including of women in their nightgowns.

In response, the Attorney General, Sarath Silva, undertook to issue new guidelines concerning checks and questioning of Tamils in Colombo. In the meantime, he has been using the media to clarify security procedures, in particular the identity documentation required at checkpoints. The Attorney-General also publicly acknowledged that the security forces will not discover LTTE cadres by conducting mass arrests; rather, the government needs good intelligence to carry out checks.

There have been no reports of disappearance in police custody in Colombo over the past twelve months.

Also, from DFAT reporting in March 1999 (Country Information Report67/99, CISNET CX34175):

"Large-scale cordon and search operations have generally followed major security incidents in Colombo. The last large-scale operation took place on 1 April 1998 after the Maradana bombing of 5 March, which killed 40 people and wounded 150. The operations ceased after widespread protest and public recognition by the Attorney-General that only good security intelligence, not mass arrests, would uncover LTTE operatives.

Human rights groups report that the number of arrests under the emergency regulations (ER) and Prevention Of Terrorism Act (PTA) in Colombo has decreased over the last few months ... reliable observers estimate that around 95 percent of people arrested are released within 24 hours. Of the five percent who remain in detention, some may be released within days and others may be held for a much longer period of time ...

Human rights lawyers advise that most allegations of torture come from people arrested under the ER and PTA; not those held under the common law. Most complaints of torture relate to the period of interrogation, which can last from a matter of hours to a week ...

Human rights groups advise that of the ER and PTA detainees they visit or represent in Colombo, around 40 percent either complain of being tortured or show signs of torture ...

Physical mistreatment not amounting to torture (ranging from pushing and shoving to beating) is not uncommon in Sri Lankan law enforcement. It occurs across all categories of prisoners, inclusive of people arrested under the ER, irrespective of their ethnicity.

The overwhelming majority of people arrested under the ER today are Tamils in connection with LTTE activities. As most incidents of torture are reported in the context of arrest under the ER, those most likely to be tortured are Tamils. By contrast, in the late1980s, when the ER were employed against JVP suspects, those most likely to be tortured were Sinhalese youth ...

People are stopped randomly at checkpoints in Colombo and asked to show their National Identity Cards (NIC). Those with Tamil names are questioned. If their NIC identifies Colombo as their place of birth, they will almost always be allowed to move on, unless it is considered that there is some reason to suspect them (an estimated500,000 Tamils live in Colombo, almost half the population of the city.) If the NIC identifies the north, particularly Jaffna, or the east, particularly Batticaloa, as the place of birth, they will be required to explain their presence in Colombo. If they cannot do so to the satisfaction of the security personnel, they may be taken into custody for further

questioning ...

Tamils are targeted at checkpoints because the present insurgency is Tamil-based. People in custody are generally not treated differently on the basis of their ethnicity. Resentment between Tamil and Sinhalese remand prisoners sometimes arises because the Sinhalese on remand for common law offences perceive that Tamils detained under the PTA and ER receive more attention from outside agencies ...

Mistreatment of detainees is not official government policy. Human rights groups advise that treatment in custody often depends on the particular police and security forces personnel an individual encounters.

Safeguards include anti-torture legislation, the constitutional right to freedom from torture, presidential directives relating to those arrested under the ER, human rights training of police and security forces, the Anti-Harassment Committee (see below) and unhindered access to places of detention by the ICRC and the Human Rights Commission (HRC). We cannot assess with certainty which of the various factors has the most influence on improving the treatment of detainees. However, from discussions with contacts, the most effective safeguards seem to be activities which make the security personnel aware that they are being observed. That is, visits to detention centres by the ICRC and the HRC and intervention by the Anti-Harassment Committee.

It is ICRC policy to visit every person who is detained under the ER. The HRC makes unscheduled visits to places of detention, which are less frequent than ICRC visits, due to resource constraints. Some human rights groups complain that the HRC is not doing enough to address the problems faced by people detained under the ER.

Failure by police to issue receipts for arrest is punishable by up to two years imprisonment and a fine under emergency regulation18(9). Despite the fact that the requirement to issue receipts is regularly ignored, we are not aware of any case where a police officer has been charged under this regulation.

Under the convention against Torture Act (CAT) 1994, torture is punishable by up to seven years imprisonment ... To date, no charges have been brought against police or security forces personnel under this Act.

A number of successful civil suits have been brought against security personnel for breach of Article 11 of the Constitution, which guarantees the right to freedom from torture. The government no longer pays the fines on behalf of the offenders ...

The Anti-Harassment Committee was established by a presidential directive in July 1998, following allegations of harassment of Tamil civilians by police and security forces personnel. Three cabinet ministers, five MPs (including non-government members), and the heads of all the armed forces and police are members of the Committee. There are three Sinhalese, three Tamil and two Muslim members on the Committee: Ministers Lakshman Jayakody, Lakshman Kadirgamar (Foreign Minister), G L Peiris (Justice Minister) and Batty Weerakoon; MPs Douglas Devananda (EPDP), M Zuhair (SLMC), R Sampanthan (TULF) and K M M Sheriff (secretary). The Inspector General of Police, the Army Commander, and representatives of the Airforce, Navy And Attorney-General's Department also participate.

The Anti-Harassment Committee meets weekly to consider complaints relating to the failure of the security forces to properly carry out the procedures under the PTA and ER and to order remedial action where necessary. Human rights organisations report that the Committee is more effective than the HRC, as its mandate is restricted to issues arising under the ER and PTA. The high-level membership of the Committee ensures that its intervention in cases is very influential. It has resolved a number of cases and instigated disciplinary action against police and security forces personnel.

Legal aid NGOs are generally positive about the work of the Anti-Harassment Committee. Some report that the Committee has made successful interventions in cases after complaints have been lodged, citing cases where: police have been forced to apologise to families of detainees for not providing a receipt of arrest; detainees are released where there is insufficient evidence to hold them on suspicion; and where missing persons have been traced. Some NGOs report that they have had little or no success after lodging complaints with the committee"."

The Tribunal concluded that

"Taken together, a consistent picture emerges from all this, indicating that the Sri Lankan authorities do not target Tamils per se and that the Government is providing mechanisms for protection of Tamils from mistreatment by the security forces. This does not mean that individual Tamils may not face particular difficulties. However, the individual circumstances of the Applicant has already been discussed.

Having regard to all the evidence before it and the particular circumstances of the Applicants, the Tribunal is satisfied that impact on the Applicant of security operations and measures in Colombo does not amount to persecution for a Convention reason or form part of a pattern of conduct amounting to persecution Given the context in which such security measures are taking place and the policy and practice of the Sri Lankan Government directed against excess and abuses, the Tribunal does not accept that if the Applicant returns to Sri Lanka the activities of the security forces in Colombo would give rise to real chance of persecution of him for a Convention reason."

TRIBUNAL DECISION

7 The Tribunal, in assessing the material summarised above and the history of the matter, including the hearing before the Tribunal, concluded that there were serious inconsistencies and difficulties with the applicant's evidence and found that the applicant's responses to, and attempted explanations of, these inconsistencies were unsatisfactory.

8 The Tribunal accepted the evidence recorded on the face of the applicant's passport, but did not believe the applicant's evidence that he had lost the passport before this time and had only taken a photocopy to the Sri Lankan Embassy in Jakarta.

9 The Tribunal found that the applicant's account of detention and imprisonment from October 1990 to December 1991 was totally fabricated. It relied on findings that the applicant was not known to or visited by the ICRC during the claimed fourteen months in prison, notwithstanding evidence from the ICRC and DFAT about its visiting policy and practices, and a finding that his previous passport was issued in December 1990 at the time he claimed to have been in prison on suspicion of security offences.

10 In considering the genuineness of the applicant's claimed subjective fear, the Tribunal also noted that the applicant returned openly on his own Sri Lankan passport to Sri Lanka on at least two occasions after he had left to work in Indonesia, in December 1993 and 1994.

11 In the light of varying evidence, the Tribunal refused to accept that the applicant was detained and mistreated during the December 1994 visit. The Tribunal did not accept that the alleged arrest as an LTTE suspect could plausibly have been omitted from the earlier detailed statutory declaration if it were true. The Tribunal stated that in light of its findings about the applicant's untruthfulness and the particular difficulties with his changed evidence about the 19994 incident, the Tribunal was not satisfied that the incident occurred at all.

12 Overall the Tribunal did not find the applicant to be a satisfactory or credible witness giving an account of his experiences both in Sri Lanka and in Indonesia. However, the applicant also based his claim for refugee status on the current situation in Sri Lanka where he said that Tamils were at risk of persecution. The Tribunal dealt in some detail with the reports of the situation in Sri Lanka from a range of sources (pages 18-23 of the Refugee Review Tribunal decision) and then concluded on the basis of these reports that the authorities in Sri Lanka do not target Tamils per se and in fact provide mechanisms for protection of Tamils from security forces.

13 While the Tribunal recognised that this does not mean that individual Tamils may not face particular difficulties, the Tribunal found the individual circumstances of the applicant to be such as to preclude him from that category.

14 In summary, the Tribunal was satisfied that the impact on the applicant of security operations and measures in Colombo does not amount to persecution for a Convention reason or form part of a pattern of conduct amounting to persecution. The Tribunal did not accept that if the applicant returns to Sri Lanka the activities of the security forces in Colombo would give rise to a real chance of persecution of him for a Convention reason.

DECISION

15 It is this last part of the decision regarding the consideration of what might happen to the applicant on his return to Sri Lanka that is challenged in the application for judicial review. The applicant submits that the Tribunal failed to make material findings of fact as to what might happen in the future to the applicant on his return to Sri Lanka. It did not give reasons as to why what might happen to the applicant would not amount to persecution, nor why such happenings would or would not be for a Convention reason. The findings made in respect of the past history of the applicant and his credibility, which are set out above, are not challenged in this application.

16 The respondent submitted that, although the Tribunal is obliged by s 430(1) to set out its findings on material questions of fact and to refer to the evidence or other material on which the findings of fact are based, the Tribunal's reasons for its decision and its findings are to be given a beneficial construction and are not be scrutinised in an overly critical way (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272).

17 The respondent argues that if one takes this beneficial approach, the Tribunal has implicitly, made the relevant findings which can be deduced by reading the Tribunal's reasons as a whole. This can be done without non-compliance with the legislation because one of the purposes of s 430(1) is to ensure that the Tribunal's reasoning process is explained and an unsuccessful applicant understands why he or she failed in the application. As this decision does fulfil that objective the absence of even material findings will not amount to legal error.

18 The respondent does not challenge the applicant's submission that the fact that the applicant is not a person who would face particular difficulties in Colombo is a material matter, nor that the assessment of these difficulties, as to prospects of persecution, is material. However, the respondent argues that the process of the Tribunal's reasoning is clear from the structure of the decision.

19 I do not accept this submitted conclusion. Even giving a beneficial reading to the decision, a reader could not, in my view, understand how the Tribunal came to the conclusions that it did on these issues. As the applicant submitted, the Tribunal did accept the country information which stated that individual Tamils may face difficulties but it did not then indicate in what circumstances such difficulties would be likely to occur. It merely stated that it had "already discussed" the individual circumstances of the applicant. However, on reading the decision the only relevant circumstance discussed but not accepted was the applicant's claim that he is of particular interest to the authorities. The Tribunal then concluded that the applicant would not fit into the category of people who would have difficulties. Its reasons do not state why this conclusion was reached.

20 The Tribunal also found that there would be some impact on the applicant of security measures in Colombo but did not state what this impact is or why it does not amount to Convention persecution. The country information, produced in full above, on which this conclusion is apparently based is capable of being interpreted in a number of ways. The Tribunal does not explain why it preferred the particular conclusion it came to in this case. The respondent argues that because the Tribunal found that the impact on the applicant of the security measures did not amount to persecution "it must have determined" that there was no real chance of the applicant being detained and tortured on the basis of his Tamil ethnicity. However, accepting from the country information reports of torture and mistreatment of Tamils in detention the Tribunal does not give any explanation of why it concluded there was no cause or connection between such mistreatment and the Tamil ethnicity of detainees.

21 It may be that the Tribunal had weighed up the effect of the policy and practices of the Sri Lankan government which were directed against abuses of this kind and concluded that these were successful enough to reduce the likelihood of serious mistreatment in custody and therefore concluded that there was no real chance of such mistreatment occurring to the applicant. The reasons for decision does not reveal such reasoning and it could not, in my view, even giving the reasons a beneficial construction be fairly inferred.

22 Once the Tribunal considered the country information in order to reach its decision on the general question of whether as a Tamil the applicant faced a real chance of persecution if returned to Sri Lanka, a number of material questions needed to be addressed:

(a) What was the likelihood of the applicant being detained in Colombo in a round-up or at a check-point because he is a Tamil?

(b) What was the likelihood of the applicant, if detained, being mistreated in custody in a manner serious enough to constitute persecution?

(c) If such serious mistreatment might occur would it be characterised as being inflicted for a Convention reason?

(d) Was there a real chance of such mistreatment for a Convention reason occurring?

No findings either explicit or implicit were made on any of these issues.

23 There has therefore been a substantial failure of the Tribunal to set out its findings and reasons for concluding that this applicant is not at risk of persecution in Colombo because he is a Tamil and the obligations imposed on the Tribunal by s 430 has not been met. I remit the matter to the Tribunal for determination according to law.

I certify that the preceding twenty three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Connor.

Associate:

Dated: 4 February 2000

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Connor.

Associate:

Dated: 4 February 2000

Counsel for the Applicant:	C Colborne
Solicitor for the Applicant:	Somers & Sivalogan Solicitors
Counsel for the Respondent:	J Smith
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	15 November 1999
Date of Judgment:	4 February 2000