De Costa v Minister for Immigration and Multicultural Affairs

[2001] FCA 1632

FEDERAL COURT OF AUSTRALIA

De Costa v Minister for Immigration & Multicultural Affairs [2001] FCA 1632

WEERATHUNGA ARACHCHIGE PULASTHI KALYANAPRIYA DE COSTA v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 960 OF 2001

LINDGREN, TAMBERLIN AND MANSFIELD JJ
14 NOVEMBER 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 960 OF 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	WEERATHUNGA ARACHCHIGE PULASTHI KALYANAPRIYA DE COSTA APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	LINDGREN, TAMBERLIN AND MANSFIELD JJ
DATE OF ORDER:	14 NOVEMBER 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the respondent’s costs.

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	N 960 OF 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	WEERATHUNGA ARACHCHIGE PULASTHI KALYANAPRIYA DE COSTA APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	LINDGREN, TAMBERLIN AND MANSFIELD JJ
DATE:	14 NOVEMBER 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1. The appellant (“Mr De Costa”) appeals from a decision given by Moore J on 6 June 2001 by which his Honour dismissed Mr De Costa’s application for review of a decision of the Refugee Review Tribunal (“the Tribunal”).  The Tribunal had affirmed a decision of a delegate (“the Delegate”) of the respondent (“the Minister”) refusing to grant Mr De Costa a protection visa.

2. Mr De Costa is a citizen of Sri Lanka of Sinhalese ethnicity.  He arrived in Australia on 10 November 2000 and was immediately placed in immigration detention.  Apparently he lodged an application for a protection visa on 17 November 2000 (that application is not reproduced in the appeal book) but that was soon followed on 27 November 2000 by a further application dated 24 November 2000 with some accompanying documentation, including a written statement by Mr De Costa.  On 21 December 2000 the Delegate refused the application.  Mr De Costa lodged his application to the Tribunal for review of the Delegate’s decision on 22 December 2000.

3. The Tribunal affirmed the Delegate’s decision on 19 March 2001 and Mr De Costa was advised of the Tribunal’s decision on the same day.  He lodged his application for a review in this Court on 28 March 2001.  All parts of the form designed to elicit information about the nature of the application were filled in “Details will be sent later”.  As noted earlier, that application was dismissed by Moore J on 6 June 2001. 

4. In his present notice of appeal Mr De Costa does not identify any grounds of appeal, again stating “Details will be sen[t] ... later”, but, under the heading “Order Sought”, the notice of appeal states as follows.  (We have not corrected spelling errors or other solecisms.)

   “I do not agree with the decssion of Federal court because I think they did not take in account all the grounds and circumstances.  So I want to appeal in full Federal court in order to consider my case.”

5. Before the Tribunal Mr De Costa’s claims were generally to the following effect.  While working in his brother’s shop he became friendly with a Tamil customer.  In December 1999, following a bomb blast, his Tamil friend was arrested and the authorities found Mr De Costa’s business card in his friend’s house.  In January 2000 Mr De Costa was detained by the police for three days during which time he was interrogated and assaulted.  In June 2000 Mr De Costa helped his Tamil friend travel to another town, where, the next day, there was a bomb blast.  A few days later Mr De Costa was taken by the CID to a place he did not know, where he was tortured and kept for three days, before being released after his brother’s friend paid a bribe.

6. To escape harassment Mr De Costa moved to other cities where he stayed with relatives.  At some stage he learned that his Tamil friend was a member of the Liberation Tigers of Tamil Eelam.  Mr De Costa was told by members of his family that the authorities had been coming to his house and that he would not be safe if he remained in Sri Lanka.  Mr De Costa’s uncle arranged his trip to Australia, which was via Bangkok and Malaysia and involved a “smuggler”.  Finally, Mr De Costa claimed that if he returned to Sri Lanka he would be perceived as being opposed to the government and as being involved in subversive activities and would be harmed, apparently by the police.

7. The Tribunal explored these claims in some detail with Mr De Costa and concluded that they were implausible.  The Tribunal did not accept that he had been arrested, detained, interrogated and tortured in the late 1990s or again several months later because of his close friendship with a Tamil friend.  Nor did the Tribunal accept that the police came looking for him at his home.  The Tribunal stated as follows:

   “I consider that the Applicant’s evidence is a fabrication intended to provide a basis for his application for a protection visa.  I do not accept that he has a well-founded fear (...) that, if he returns to Sri Lanka now or in the reasonably foreseeable future, he will be arrested, detained, tortured, killed or otherwise persecuted by reason of his imputed political opinion, his race or any other Convention reason.”

8. The Tribunal gave reasons for arriving at that view of the facts.  The primary Judge said that there was nothing apparent in the reasons of the Tribunal to suggest any reviewable error.  We have read the reasons of the Tribunal and share his Honour’s view.

9. Before us this morning Mr De Costa has been given an opportunity to point to any particular error in the Tribunal’s reasons for decision.  He has said in substance only that he disagrees with them and would like the opportunity of putting further evidence before someone with a view to supporting his claims, although he does not have that evidence with him this morning.

10. No reviewable error in the reasoning of the Tribunal suggests itself and the appeal from the primary Judge’s decision should be dismissed with costs.

11. We note in passing that the Tribunal recorded that if it had accepted Mr De Costa’s claims and evidence, it would not have considered them to have established a Convention ground.  In particular, the Tribunal said it would appear that if the authorities pursued Mr De Costa upon his return to Sri Lanka, they would be doing so by way of a prosecution for an offence under the Prevention of Terrorism Act – a law of general application.  We need not discuss this alternative ground which the Tribunal gave for its decision.  It suffices to say that it does not appear to be entirely without some cogency, particularly since Mr De Costa’s representative conceded before the Tribunal that: “there is clearly a basis upon which the authorities could reasonably suspect him of having committed such an offence”.

12. For the above reasons the Court orders that:

    1.        The appeal be dismissed.

    2.        The appellant pay the respondent’s costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated:             19 November 2001

The Appellant appeared in person.
Counsel for the Respondent:	Mr G R Kennett
Solicitors for the Respondent:	Sparke Helmore
Date of Hearing:	14 November 2001
Date of Judgment:	14 November 2001