Udaya Saman Perera Ranwalage v Minister for Immigration & Multicultural Affairs [1998] 1480 FCA

MIGRATION - review of decision of Refugee Review Tribunal - applicant's knowledge of alleged involvement of powerful Sri Lankan political figure in political assassinations - whether "political opinion"

WORDS AND PHRASES - "political opinion"

Chan Yee Kin v Minister for Immigration etc (1989) 169 CLR 379 applied

Clarke v Norton [1910] VLR 494 mentioned

Global Statesman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 at 88 mentioned

Attorney General (Canada) v Ward (1993) 103 DLR (4th) 1 at 41 applied

Minister for Immigration etc v Y (unreported, Davies J, 15 May 1998) followed

Minister for Immigration etc v Z (unreported, Davies J, 15 May 1998) followed

UDAYA SAMAN PERERA RANWALAGE, JEEWANI NIRANJALA PERERA WIJSUNDARAGE AND MANODYA HASINI PERERA RANWALAGE

NO. VG 104 OF 1998

HEEREY J

20 NOVEMBER 1998

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 104 of 1998

BETWEEN:

UDAYA SAMAN PERERA RANWALAGE

FIRST APPLICANT

JEEWANI NIRANJALA PERERA WIJSUNDARAGE

SECOND APPLICANT

MANODYA HASINI PERERA RANWALAGE

THIRD APPLICANT

AND:

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE: HEEREY J

DATE OF ORDER: 20 NOVEMBER 1998

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1.     The decision of the Refugee Review Tribunal dated 18 February 1998 is set aside.

2.     The matter be remitted to the Tribunal for reconsideration in accordance with law.

3.     The respondent pay the applicants' costs, including reserved costs.

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 104 of 1998

BETWEEN:

UDAYA SAMAN PERERA RANWALAGE

FIRST APPLICANT

JEEWANI NIRANJALA PERERA WIJSUNDARAGE

SECOND APPLICANT

MANODYA HASINI PERERA RANWALAGE

THIRD APPLICANT

AND:

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE: HEEREY J

DATE: 20 NOVEMBER 1998

PLACE: MELBOURNE

REASONS FOR JUDGMENT

This application for a review of a decision of the Refugee Review Tribunal raises important questions as to the proper construction of the term "political opinion" in the Convention definition of refugee.

According to that definition a refugee is 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; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it."

Can an assertion of fact - in this case an allegation of complicity of another person in politically motivated assassinations - be an expression of "political opinion"? Can knowledge of such a fact amount to "opinion"?

The applicants

The applicants are citizens of Sri Lanka, the first applicant having been born in that country in 1961 and his wife, the second applicant, in 1965. The third applicant is their daughter, now aged six. They arrived in Australia on 11 May 1996. On 21 January 1997 they lodged applications for protection visas. On 5 May 1997 a delegate of the Minister refused to grant them such visas and that decision was affirmed by the Tribunal on 18 February 1998. The second and third applicants' case is entirely dependant on the first applicant's. It will be convenient hereafter to refer to the first applicant simply as "the applicant".

The applicant's case

The applicant's brother was a security guard for the late President Premadasa. The brother was killed along with Mr Premadasa when the latter was assassinated on 1 May 1993. The Liberation Tigers of Tamil Eelam were blamed for this assassination. However the applicant believed otherwise. His brother had told him that an earlier assassination of Mr Lilath Athulathmudali, which was also blamed on the LTTE, was not the work of that organisation but the work of factions within the Government, at that time controlled by the United National Party. In particular the applicant's brother blamed a Mr Sirisena Cooray, the leader of an underworld group, but also a Minister in the UNP Government and a person of immense power and influence within Sri Lanka.

The applicant stated that he could not "come out with the real facts" because the UNP was in power. At the election in 1994 the People's Alliance Party obtained power. It promised to investigate the assassinations. The PAP Government in due course established a Special Presidential Commission. Mr Cooray declined to appear before the Commission and as a consequence the Commission recommended that he be deprived of his civic rights. He was arrested but subsequently released by order of the Supreme Court of Sri Lanka. Mr Cooray went to Australia but by the time of the Tribunal decision he had returned to Sri Lanka, vowing to contest the Commission's findings. (The Tribunal's reasons have the applicant "claim(ing) that Mr Cooray was in Australia at the moment". That may have been correct as at the date of the hearing (18 December 1997) but the applicant's solicitors' subsequent submissions dated 28 January 1998 state that Mr Cooray "has now returned to Sri Lanka".)

Mr Cooray has re-established his connection with the UNP. In the words of the applicant's solicitors' submissions, Mr Cooray wishes to

"make alliances and get a foothold on the political platform and be a `king maker' as to the future President. People like the applicant and the information they could provide will be detrimental to his scheme of things."

Prior to 30 January 1996 the applicant had no problems. He arranged for an unsigned article about the killings to be published on 19 February 1995 in the Ravaya newspaper, but this did not result in any difficulties. However on 30 January 1996 the applicant's niece was amongst those killed in a bomb blast at the Colombo Central Bank. During the funeral of his niece he openly stated that he believed that this was the work of Mr Cooray. He gave an interview to the Ravaya newspaper but they declined to print it. He returned to work on 12 February 1996. Both he and his wife received telephone threats. He was told that he should "keep his mouth shut otherwise he would go to the same place as his brother".

Mr Cooray's return has created difficulties for the present government and the authorities "are forced to obtain more and new evidence on Mr Cooray's conduct". The applicant is concerned that on his return the police would be

"... inclined to make him talk about various matters that would fit the profile they have presently drawn against Mr Sirisena Cooray and that if he did not cooperate, these officers will give him trouble ... the culture of violence prevalent among the forces would be let loose on the Applicant, with attendant powers under the Emergency and PTA."

The Tribunal's findings and reasons

The Tribunal stated:

"The Tribunal has considerable doubts that the applicant is wanted by the underworld. He claims to have been told by his brother that it was not just the LTTE involved in the assassinations but that people in power were also involved. In particular he has pointed his finger at a Mr. Sirisena Cooray. However it was not apparent to the Tribunal that aside from having theories about this person's involvement he has any other knowledge other than that gained from his deceased brother. From the newspaper cuttings provided it also appears that what he has been saying is not at odds with what appears to be publicly available information or publicly held theories. The applicant did not indicate to the Tribunal that he had any first hand information which would in any way harm Mr. Cooray or any other underworld figures. However if he has been making public statements he may be perceived to be a nuisance or indeed be perceived to have some information that is not otherwise available.

If it is accepted that there are underworld people after the applicant then, on the applicant's evidence, it is in relation to some knowledge derived from or perceived to derive from [sic] his deceased brother. The applicant repeatedly told the Tribunal he was at risk because of what he knows and because he has threatened to reveal all the facts. The issue then is whether the applicant's fear is for a Convention reason."

The essence of the Tribunal's reasoning appears in the following passage:

"In the Tribunal's view if the applicant does have knowledge that others do not want revealed, then this is something personal to the applicant. It is not because of some expression of political opinion that the applicant is sought, but to prevent this knowledge reaching the public. It is not therefore related to the applicant's political opinion."

Referring to the applicant's statements made at his niece's funeral that UNP people were involved in the bombing, the Tribunal commented:

"This reflects the situation that the applicant apparently has some knowledge that puts politicians at risk. However the Tribunal considers that it is the applicant's knowledge that puts him at risk, not any political opinion he may hold."

Further the Tribunal stated that it

"does not accept that in seeking out the applicant Mr. Cooray is doing so because he imputes a political opinion [to the applicant]. It is solely because the applicant has information that could damage Mr. Cooray."

The Tribunal found that "any problems that the applicant faces are not Convention related".

Notwithstanding the somewhat tentative and conditional way in which the Tribunal discussed the evidence, counsel for the Minister accepted that the Tribunal had found that the applicant did in fact hold a fear of persecution. The Tribunal did not suggest that such a fear was not "well-founded", in the sense discussed in Chan Yee Kin v Minister for Immigration etc (1989) 169 CLR 379. However the Tribunal decided in substance that such persecution would not be "for reasons of ... political opinion".

"Political opinion"

The construction the Tribunal put on the term "political opinion" was critical to its decision. The distinction the Tribunal drew between, on the one hand, knowledge, or imputed knowledge, of a fact (Mr Cooray's involvement in the assassinations) and, on the other hand, opinion echoes the distinction in the law of defamation between fact and comment. To make out the defence of fair comment a defendant has to show that the statement complained of was comment in the sense of opinion, deduction, inference, conclusion, criticism, judgment, remark, observation etc: Clarke v Norton [1910] VLR 494 at 499 per Cussen J. If that is so, the defendant only has to show that the opinion was honestly held. If however the statement was a statement of fact the defendant must prove it to be substantially true.

In another area of domestic law, s 52 of the Trade Practices Act 1974 (Cth), a statement characterised as opinion rather than assertion of fact will only be misleading and deceptive if the maker of the statement did not in fact hold that opinion: Global Statesman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 at 88.

However in the very different context of the Convention I do not think such distinctions are necessarily valid. In a political context, an assertion of fact can be perceived by those in authority (or by others whom those in authority cannot control) as just as dangerous, perhaps more so, than an expression of opinion (in the strict sense) and thus warranting the persecution of those who state such facts.

A paradigm example from history is Emile Zola's open letter "J'accuse", published 100 years ago this year. This was not a statement of opinion, philosophy or belief but a denunciation of the French General Staff and an assertion of the innocence of Alfred Dreyfus. (The events which followed make the analogy all the more apt. Zola was prosecuted for libel and found guilty. The conviction was quashed by the Cour de Cassation but before the verdict on the retrial could be given Zola fled to England. He was, until his return to France the following year, a refugee in the modern sense.)

I agree with counsel for the applicant that the Tribunal erred in relying on a supposed dichotomy between "political opinion" and "personal knowledge". Moreover, as the applicant's counsel contended, the accusations which the applicant was perceived as wishing to ventilate necessarily involved an opinion that Mr Cooray was unfit for public life in Sri Lanka.

Asylum seekers are more likely to come from troubled countries where political violence is rife than from peaceful and stable societies. Accusations of involvement in violence and other criminal conduct is likely to form part of political discourse. It would be a surprising intention to impute to the drafters of the Convention that only people who were persecuted because their "opinion" consisted of views on abstract questions of legislative policy or political philosophy would be within its protection.

Counsel for the Minister, correctly, did not suggest that there could be no persecution because Mr Cooray was presently not a part of the governmental apparatus of Sri Lanka. As La Forest J said in Attorney General (Canada) v Ward (1993) 103 DLR (4th) 1 at 38-39:

"...international refugee protection extends to situations where the state is not an accomplice to the persecution, but is unable to protect the claimant. In such cases, it is possible that a claimant may be seen as a threat by a group unrelated, and perhaps even opposed, to the government because of his or her political viewpoint, perceived or real."

There is the further element in the present case that even if the applicant wished to keep his dangerous knowledge to himself, the present authorities in Sri Lanka may insist on him becoming involved in proceedings against Mr Cooray.

I have not been able to find any direct authority, but the conclusion I have reached is consistent with the decisions of Davies J in Minister for Immigration etc v Y and Minister for Immigration etc v Z, two unreported judgments handed down on 15 May 1998. In the first case Mr Y was a Brazilian citizen who had witnessed a local policeman shoot and possibly kill one of a group of youths being assaulted by police. He reported the police to the authorities but was subsequently abducted and tortured. A friend who also witnessed the incident was killed and Mr Y's wife was abducted and raped. Davies J said (at 7):

"The Tribunal was entitled to conclude that Y's knowledge and conduct made him a danger not only to the policemen involved in the incident which he had observed but to the Police Force in general and to the manner in which power is exercised in Brazil.

...

Mr Beech-Jones submitted that the Tribunal failed to explain the basis upon which the Tribunal concluded that Y's opposition to criminal activities by police officers in Brazil constituted the expression of a political opinion for the purposes of the Convention. However, the Tribunal made the basis of its reasoning clear. Not knowing who precisely had harmed Y and his wife, the Tribunal could not make any express findings on that. However, the Tribunal found that corruption was so widespread in government in Brazil that the harm done to Y and his wife was likely to represent government coercion against Y whose knowledge and actions were a danger to the operations of government instrumentalities such as the Police Force. The Tribunal therefore found that Y's "stance was effectively the expression of a political opinion against a pervasive aspect of the Brazilian State." The facts on which that finding was based were clearly set out."

In Z's case the applicant had himself been a police officer in Rio de Janeiro. He had given information to the authorities concerning corrupt activities of other police. Davies J said (at 3):

"In my opinion, the Tribunal clearly understood the distinction between the likelihood of harm from the acts of individual police officers and the likelihood of harm to Z and his family from an instrument of the State such as the Police Force in Brazil because Z's activities could be seen as a threat to the way in which the power of the State was exercised in Brazil."

Thus in both cases Davies J rejected the argument that the respective applicant's fear was of harm from corrupt and criminal individuals rather than the Brazilian State and hence not a matter of "political opinion" within the meaning of the Convention. However it is implicit in his Honour's reasoning that knowledge of a fact - that police had been involved in criminal activity - could be just as much "political opinion" as views on political, economic or philosophical issues.

The decision of the Tribunal will be set aside and the matter remitted for reconsideration in accordance with law. There will be an order that the Minister pay the applicants' costs.

I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey

Associate:

Dated: 20 November 1998

Counsel for the Applicant: R M Niall

Solicitors for the Applicant: Wisewoulds

Counsel for the Respondent: W Mosley

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 4 November 1998

Date of Judgment: 20 November 1998