Mahesparam v Minister for Immigration and Multicultural Affairs

FEDERAL COURT OF AUSTRALIA

IMMIGRATION - review of decision of Refugee Review Tribunal - Sri Lankan human rights lawyer - Tribunal considered that conditions had improved - reliance upon out of date materials - failure adequately to deal with material questions of fact arising from more up to date information before Tribunal - alleged failure to determine facts at date of hearing

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

Jarrin v Minister for Immigration & Multicultural Affairs [1998] FCA 765, explained

Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247, applied

MAHESPARAM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 889 OF 1998

MADGWICK J

SYDNEY

15 APRIL 1999

THE COURT ORDERS THAT:

1.   The decision of the Refugee Review Tribunal of 3 August 1998 be set aside.

2.   The matter be remitted to the Tribunal for determination according to law.

3.   The respondent pay the applicant's costs.

REASONS FOR JUDGMENT

HIS HONOUR:

1 This is an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") which affirmed an earlier decision of the respondent's delegate to refuse the applicant a protection visa. The applicant is a Sri Lankan national of Tamil ethnicity. He claims that he left Sri Lanka on 3 January 1995 because he feared for his safety. He went to Korea via Manila for approximately one week and then back to Manila where he remained until he came to Australia in March 1997. He had a brother in the Philippines but made no application for refugee status there because he believed that such an application would be doomed to failure, the Philippines Government, in his understanding, being very unsympathetic to Tamil asylum seekers from Sri Lanka. Soon after his arrival in Australia he lodged an application for a protection visa.

The applicant's claims

2 The applicant was born in 1952 at Batticaloa, which is located in the predominantly Tamil Eastern Province of Sri Lanka. His family was well to do and had traditionally performed a leadership role, as local chieftains (Vaniyars), in that province. They were distinguished for the production of barristers, lawyers and judges as well as other professional people and for their philanthropy.

3 As a boy, the applicant perceived that certain Singhalese Government policies were designed to promote the dominant Singhalese Buddhist culture and, in his early teens, he was already involved with his father in resisting illegal encroachment on Tamil lands by people from other ethnic groups. Increasingly, anti-Tamil measures were enacted by the Government. By the time the applicant was 25 years of age he was an active member of the youth wing of the Tamil United Liberation Front ("TULF"), the "Young Tigers", and was acquainted with many prominent figures in various pro-Tamil organisations. The area where the family lived was a Tamil Tiger ("LTTE") stronghold and most of the applicant's associates, friends and relatives are active members, supporters or sympathisers of the LTTE. In the late 1970s and early 1980s he sustained a variety of indignities and assaults from Government officials and other Singhalese apparently having a racial basis. He and his family thereafter suffered a great many indignities and varieties of reasonably severe harm at the hands of Sri Lankan authorities and, while they were there Indian army personnel.

4 More germane to the present problem are the events claimed by the applicant from 1987, when he graduated from the Law College in Colombo. He was by this time married. His wife was employed by the State Pharmaceutical Corporation. She was the victim of workplace racial discrimination and ultimately her employment was terminated on spurious and racially motivated grounds. While serving as a legal "apprentice" the applicant instituted proceedings for racial discrimination against his wife's employer and the Attorney General in the Supreme Court. The case was ultimately dismissed, according to the applicant, by Singhalese judges for racially motivated reasons. Subsequently, the applicant assisted his wife to seek redress before a Labour Tribunal for unlawful termination of her employment. After an extensive inquiry that Tribunal ordered that she be reinstated. The litigation concerning his wife received wide publicity all of which, the applicant claims, was deeply embarrassing to the Government. The Attorney General caused an appeal to be made to the High Court, which was still unheard when the applicant left Sri Lanka and the outcome of which, if any, he does not know.

5 Thereafter, the applicant represented many clients in litigation challenging actions of government officials. In time, he became well known as a human rights advocate. He appeared, in particular, for aggrieved Tamils in cases concerning applications for writs of habeas corpus, bail applications, various matters seeking the vindication of fundamental rights and defending charges of bribery and terrorism. He had also represented Singhalese persons who claimed to have been illegally and adversely treated on account of their anti-government views, trade-union activities and so on.

6 To act in these circumstances apparently required no small degree of courage. In 1990 the Bar Association of Sri Lanka stated that:

"The practice of the law itself was made the target of attack. Many of our members who accepted briefs to challenge the denial of fundamental rights found themselves at the receiving end of mortal threats. Some were removed from our midst with violence. Others had to seek safer havens abroad."

7 The Applicant claims that he was threatened several times and that a friend of his, a human rights activist and journalist, was killed. Amnesty International confirmed that some lawyers with an anti-government profile had been threatened with death and some, in fact, killed.

8 In 1990 or 1991 the applicant's Singhalese landlord falsely accused him of "criminal force" and a warrant of arrest was issued against him. He was released on bail and sought from the Court of Appeal a stay order which though granted was apparently ignored by a Singhalese Magistrate. According to the applicant the Tamil State Attorney recommended to the Attorney General that there was no merit in the charge and that the police should be instructed to withdraw the case. However, the Attorney General refused this recommendation. The applicant claims that these false charges were acted upon with racially motivated vindictiveness by Singhalese authorities. In 1991 the applicant secured a stay of any trial pending an apparently final hearing of some kind in the Court of Appeal. He fears that these proceedings may again be invoked against him if he is required to return.

9 In 1992 an action for ejectment was brought against the applicant by his landlord. The applicant complains that the then President of the Court of Appeal, Justice Silva, demonstrated biases against the applicant in relation to this matter on account of the latter's uncompromising pursuit of various alleged Governmental illegalities. This bias, it is claimed, led to the upholding of the landlord's complaint and to an award of substantial damages against the applicant. (Soon after he left Sri Lanka the applicant's family was evicted from the premises in question upon a Court order signed by the former Justice Silva who, by this time, had been appointed Sri Lankan Attorney General.)

10 In 1994 a certain Mr Jayasekara commenced proceedings for divorce against his wife on the ground of her alleged adultery with Justice Silva (who was at this time, still the President of the Court of Appeal). As President of the Court of Appeal in Sri Lanka, Justice Silva was not only the most senior judge but also occupied a senior position with the Judicial Services Commission and the Judicial Disciplinary Committee. These bodies apparently appoint, promote, transfer and discipline judicial officers. The judge at first instance refused to accept Mr Jayasekara's claim due to an extremely technical fault in the documentation. The applicant was asked by various senior lawyers and members of the Bar Association Committee to appear for Mr Jayasekara. This he agreed to do and caused initiating appellate process to be issued.

11 What the applicant claimed was a campaign against him thereupon intensified. In the course of 1994 the Government had changed and in 1995, after the applicant left Sri Lanka, the President of the Court of Appeal became, as already noted, the Attorney General. The applicant's national identification card was stolen from him by prison authorities while visiting one of his clients. The applicant suggests that this caused him difficulties while moving within Sri Lanka and would cause him considerable difficulties if he were to return without it. More seriously, two weeks later, the applicant was abducted by secret police on his way home from his office at night. He was blindfolded and taken to an isolated building, beaten, tortured and left unconscious. He was threatened with death unless he withdrew the case against Justice Silva.

12 After these events the applicant capitulated and withdrew from various legal cases in which he was involved, claiming that he was too sick to appear. In fact, after the assault, he was receiving medical attention. However, Justice Silva (as he still was) saw to it that, despite applications for adjournment, brought on the basis that the applicant was ill, adverse orders were made against the applicant's clients.

13 Apparently others had mounted something of a political campaign against Mr Silva. The applicant hoped that he would stand down. However, the applicant believed that he needed to leave the country for his safety. He learned, before he left Sri Lanka, that an extensive investigation had been conducted by Police Intelligence, allegedly upon the orders of Justice Silva, in order to gather evidence which suggested that the applicant was involved

with the LTTE. The applicant concluded that he was at risk of further detention and mistreatment.

14 It was the applicant's case that some early hopes and indications that the new government, elected in 1994, would increase the level of human rights protection in Sri Lanka were short lived. There was, in fact, evidence of some general improvement, as the Tribunal found, in the human rights situation in the period to late 1995. However, in 1996, the International Bar Association concluded that a Sri Lankan opposition MP had been politically framed on criminal charges and in 1997 a spokesperson for the same organisation claimed that there was no improvement in human rights abuses in Sri Lanka. In 1996 Government forces invaded Jaffna, the LTTE stronghold, and the LTTE commenced a terror campaign in Colombo. Both sides committed atrocities and the erstwhile truce was shattered.

15 The applicant submitted independent evidence showing that, although in December 1995 the Sri Lankan army had captured Jaffna,

"by late 1996 it was clear that the war was far from over, and the human rights situation throughout the country remained grave…

The year also saw a rise in political violence in southern Sri Lanka between supporters of the ruling People's Alliance (PA) party led by Prime Minister Chandrika Kumaratunge and its chief opposition, the United National Party (UNP). That violence had killed 15 people by the end of September...

Human rights organization protested the application of emergency regulations in non-security-related areas ... Deliberate arbitrary killings [by the LTTE] of civilians escalated sharply in 1996... Members of the security forces were also implicated in extrajudicial killings, as were Singhalese and Muslim home guards armed by the Sri Lankan government ... Police and army personnel throughout the country, and particularly in Colombo and the northeast continued to engage in sweeping 'cordon and search operations,' which resulted in the arbitrary arrests and detention of Tamil civilians and the mistreatment and torture of detainees. These sweeps intensified following major incidents in which the LTTE was implicated...

Sri Lankan officials expressed private frustration over persistent physical mistreatment of detainees by police during interrogations, the army's use of illegal detention facilities, and severe torture in unofficial places of detention, but disciplinary or criminal action against perpetrators of abuse remained rare...

In August, President Chandrika Kumaratunge ... warned that two local newspapers ... must either be closed down or the government should 'publish alternative newspapers to counter them'...

16 The body reporting this intelligence, Human Rights Watch, referred to "a narrowing of the space for dissent" that began in 1995 and to concerns that remained,

"over incidents of police harassment of persons associated with international organizations concerned with human rights ... as well as possible threats to Sri Lankan human rights activists from other political forces, particularly the LTTE, which threatened harsh measures against clergy or nongovernmental organization who cooperated with government rehabilitation efforts in Jaffna."

17 Further material was submitted from the US State Department (the US Government being a supporter of the Sri Lankan government) which reported, among other things, that:

"Impunity remains a serious problem. Since April 1995 at least 700 persons have been extrajudicially killed by the security forces or disappeared after being taken into security forces custody and are presumed dead. As of year's end, no member of the security forces had been convicted for any of these crimes. In the vast majority of cases where military personnel may have committed human rights violations, the Government has not identified those responsible and brought them to justice. The military leadership has failed also in this regard. Almost all senior military officers now serving were mid-level officers during the Janetha Vimukthi Peramuna (JVP) uprising, when security forces were given great leeway in dealing with that threat to the nation's security. Attitudes and practices have been slow to change....

Members of the security forces continued to torture and mistreat detainees and other prisoners, both male and female, particularly during interrogation. Progovernment Tamil militants in the east and north, directly responsible to the security forces, also engaged in torture. Most torture victims were Tamils suspected of being LTTE insurgents or collaborators.

Methods of torture included electric shock, beatings (especially on the soles of the feet), suspension by the wrists or feet in contorted positions, burnings, and near drownings. In other cases, victims are forced to remain in unnatural positions for extended periods, or bags laced with insecticide, chili (sic) powder, or gasoline are placed over their heads. Detainees have reported broken bones and other serious injuries as a result of their mistreatment."

18 In a "Country Information Report" of 13 June 1997, the Australian Department of Foreign Affairs and Trade referred gloomily to "the slow pace of the constitutional reform process" referring to the devolution of regional powers, and concluded "only the most optimistic observer believes that the Government will be able to defeat the LTTE militarily". The applicant's case was that with the renewal of hostilities and the inability of the Government to prevail militarily, repression against perceived political dissentients, including himself if he returns, is likely to be at a high level.

The Tribunal's decision

19 The Tribunal first rejected the possibility that the applicant might have a Convention claim to refugee status on the grounds of race because of his Tamil ethnicity. No complaint is here made about that. The Tribunal Member then turned to consider the applicant's activities in human rights related cases. She expressed her "concern" at the independent evidence submitted by the applicant in regard to the persecution of judges and lawyers but noted that the applicant's evidence related to action against lawyers during a leftist Singhalese insurgency in the late 1980s. She then referred to material, none of which is dated later than November 1995, to suggest that there had been improvements since then. For example, the Tribunal quoted from an Australian High Commission cable of November 1992 about a case in which similar claims to those of the applicant had been raised:

"It would be most unlikely that a lawyer returning to Sri Lanka will run into difficulties because he was previously involved in legal work on behalf of detainees ... Many people carry on their professional careers and human rights activities without undue difficulty... There are hundreds of such people involved in such work in Colombo today."

20 The Tribunal Member concluded on this score:

"The Tribunal finds that the applicant's involvement in human rights and related cases before the courts in Sri Lanka would not, of itself, impute a controversial political opinion to the applicant"

21 Reading the Tribunal's decision with due charity, it seems to me that essentially the Tribunal's reasoning was that conditions had now improved in such a way that, although the applicant's role as a human rights lawyer might well involve the imputation to the applicant by the authorities of a political opinion (such as an inconveniently firm insistence on respect for the rule of law and/or other human rights) antithetical to the government's agenda or to the government's ideology, conditions were such that no serious harm would now come to the applicant on account of that.

22 Dealing with the specific maltreatment that he suffered in 1994, the Tribunal accepted his claim to have been abducted, tortured and ordered to withdraw from the divorce case. The Tribunal appears also to have accepted the applicant's claim that he was "prejudiced against" in the courts because of his connection with the case against the State Pharmaceutical Corporation and that the charge of criminal force brought against him by his landlord was a "trumped up" one. However, the Tribunal continued:

"I cannot accept that the mistreatment in 1994 which he has described was the outcome of his political opinion, imputed or otherwise. In the applicant's case this mistreatment resulted from the abuse of power by persons seeking to prevent him from making the details of his involvement in a divorce case known. There is nothing to suggest that this has any motivation other than anger and fear, and has no connection with his human rights involvement."

23 The Tribunal Member relied on a passage from a judgment of mine in Jarrin v Minister for Immigration and Multicultural Affairs [1998] FCA 196 at 7.

The case for review

24 The substantial complaint made by the applicant is that the Tribunal fell into reviewable error by failing to deal adequately with the post-1995 material which was before it. It was pointed out, as I have indicated, that there is material plainly capable of supporting the inference that any earlier improvement in respect for human rights, that might lead to toleration of a gadfly such as a courageous and determined human rights lawyer, had not been maintained since 1995. Further, political developments in the country generally were apt to cause a deterioration in the prevalence of such respect: the conditions conducive to such respect, namely peace, reasonable stability, and some degree of general confidence in institutions and progress, had been shown not to exist and to be unlikely to exist in the foreseeable future. It was put that the Tribunal's failure to deal with these issues constituted error in two ways. Firstly, that the Tribunal Member had failed to determine the facts as at the date of the hearing in early 1998, and secondly, that the Tribunal had failed to make, set out and give reasons for findings on material questions of fact raised by that evidentiary material before the Tribunal.

25 The respondent points out that the well-established principle that the relevant date for determination of an applicant's claim for refugee status is when the decision is made was expressly acknowledged by the Tribunal in its decision. I would not easily infer that the Tribunal had misunderstood that task when the Tribunal Member had so expressly acknowledged the principle. That attack on the Tribunal's decision must fail.

26 In relation to the second attack, the respondent further pointed out that the Tribunal had in fact referred to post-1995 material. Indeed the Tribunal noted recent independent documentation which referred to the composition of the Sri Lankan Supreme Court as including, as one of its members, a Tamil. This founded the Tribunal's conclusion that discrimination on racial grounds within the court system was not as the applicant had claimed. It seems to me that a single reference by the Tribunal to some up-to-date material in aid of a general conclusion about the entire court system, founded upon the presence of one Tamil on the bench of the highest court in the country, whatever its other possible deficiencies, is an insufficient answer to the applicant's concerns about the Tribunal's failure to consider the important questions arising from the latter material. Reading the decision fairly, it seems to me that there was a failure to deal with crucial questions raised by that material.

27 More significantly, however, the respondent submitted that "it does not follow as a matter of logic that a resumption ... of LTTE anti-government hostilities ... could ... result in a conclusion that the applicant had a well-founded fear of persecution by reason of imputed political opinion". It was put that the only maltreatment suffered by the applicant as a lawyer had been, firstly, during the particularly bad days of 1987 and 1990 when lawyers were being killed and he was forced to "keep a low profile in order to avoid arrest and death" and nothing in the later material positively suggested a resurgence of lawyer-murders. Secondly, it arose out of the incidents involving the present Attorney General which were said by the Tribunal to result from a privately motivated abuse of power which could not constitute persecution for a Convention reason. The recent materials, even if taken into account, could not affect that conclusion.

28 There are in my view two answers to this. The first is that, long before the applicant fell foul of the present Attorney General, he suffered and feared persecution on account of being a lawyer who would press human rights cases. This was apparently consistent with the experience of other lawyers some of whom were even killed for doing their jobs. Persecution by reason of political opinion may be established even when the political opinion is an imputed one. This is trite law and was, in any case, clearly accepted by the Tribunal. The Tribunal also appears correctly in my view, to have implicitly accepted the proposition that an imputed opposition to the government, whether because of perceived LTTE sympathies, inflexible respect for the rule of law or for human rights or simply because of a perceived unanalysed antipathy to the government's course, would suffice. In my view, the more recent material before the Tribunal raised a material question whether there was a real chance that conditions in a practical sense, irrespective of the government's stated political ideals (the statement of which might owe something to pressure from somewhat embarrassed Western allies), would again deteriorate to something akin to those conditions which obtained in 1987-1990, rather than in the relatively benign years than in the period 1992-1995.

29 The second answer is that, although it was not a matter of formal complaint standing by itself in the application for review brought to this court, the Tribunal Member seems to have misdirected herself in relation to the question of possible persecution of the applicant by the present Attorney General. The Attorney General was and is of course a senior politician. He had been a very senior judge. The inference is available that, to a significant degree, in Sri Lanka his involvement in a divorce case involving his alleged adultery would be a matter of political as well as personal embarrassment. The Tribunal Member accepted that the abduction, beating and torture of the applicant occurred at the hands of the police. The inference arises that they were minions of somebody in office friendly to Justice Silva (as he was) acting at the express or implied or at least imputed request of that person. It is a matter of common experience that people frequently dress up entirely private grudges against someone by defining that person as worthy, according to some loftier principle than private vendetta, of some harm. It is not unknown of some politicians that they interpret any attack upon them, or matters within their area of responsibility as politically motivated.

30 Further, both the present Attorney General and other influential persons in authority, on the applicant's factual case (and it was not rejected by the Tribunal), had taken an unhealthy interest in the applicant long before the advent of the divorce case. The material suggesting that the applicant's activities accusing the State Pharmaceuticals Corporation of racial discrimination against Tamils had greatly concerned and embarrassed the Government and/or the Singhalese "establishment" could ground an inference that, as the applicant claimed, the Attorney General was both politically and personally motivated against him, and that other persons in authority were politically so motivated. If (imputed) political opinion plays a substantial part in the persecution feared by the applicant, that would be persecution "for reasons of ... political opinion" within the meaning of the Convention.

31 To the extent that any remarks in Jarrin may tend to the contrary of the analysis here offered, they should be considered to have been limited to the specific facts of Jarrin.

32 The fact that the Tribunal Member, with respect, so misdirected herself in relation to the material having a pre-1996 provenance (and in reliance on a decision of mine), ought not be held to carry with it the practical certainty that she would have continued in or repeated that erroneous approach if she had, as I think she was required to do, addressed her mind to the material questions arising out of the evidentiary matter having its provenance in 1996 and 1997 sources.

Conclusions

33 For these reasons it seems to me that the Tribunal failed to observe "procedures" required by s 430(1)(c) of the Act in that she failed to make (see Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247) findings on material questions of fact and, in consequence, failed to "set out" such findings and this is judicially reviewable under s 476(1)(a). The decision of the Refugee Review Tribunal will be set aside. The matter will be remitted to the Tribunal for redetermination accordance to law. The respondent is to pay the applicant's costs.

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