Shanmugarajah Thavarajasingham v. the Minister for Immigration, Local Government and Ethnic Affairs, and L.J. Smith, and Peter Hughes

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).

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 F.C.R. 543 and Chan v. Minister for Immigration and Ethnic Affairs (1989) 63 A.L.J.R. 561.

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.

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."

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: …"

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.

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.

On 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'."

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.

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.

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."

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 been 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.

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."

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 land 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.

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.

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.

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 follows 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.

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.

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."

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 A.L.D. 529 and Pashmforoosh v. Minister for Immigration, Local Government and Ethnic Affairs (Davies, Burchett & Lee JJ., delivered 28 June 1989).

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.