De Zoysa v Minister for Immigration and Multicultural Affairs

[2001] FCA 428

FEDERAL COURT OF AUSTRALIA

De Zoysa v Minister for Immigration and Multicultural Affairs [2001] FCA 428

RANIL MUNASINGHE DE ZOYSA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V534 OF 2000

WEINBERG J
22 MARCH 2001
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
DISTRICT REGISTRY	V534 of 2000

BETWEEN:	RANIL MUNASINGHE DE ZOYSA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	WEINBERG J
DATE OF ORDER:	22 MARCH 2001
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

The application be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
DISTRICT REGISTRY	V534 of 2000

BETWEEN:	RANIL MUNASINGHE DE ZOYSA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	WEINBERG J
DATE:	22 MARCH 2001
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an application for review of a decision by the Refugee Review Tribunal (“the Tribunal”) which was given on 7 July 2000.  The Tribunal decided that the applicant was not entitled to a protection visa.  By his application for an order to review filed on 25 July 2000, the applicant set out the following ground in support of the application:

   “Review of a Tribunal Decision on grounds under s 476 of the Migration Act 1958. (Further details to be forwarded.)”

2. As far as I can tell, no further details of the grounds in support of this application have ever been provided.  That is so, notwithstanding orders which were made by the Court that the applicant file and serve contentions of fact and law no later than 21 days prior to the hearing.  No such contentions of fact and law have been provided.

3. When the matter was called on for hearing this morning there was no appearance by the applicant.  Efforts were made to contact him by telephone.  However, these proved to be unsuccessful.  I considered it appropriate, in all the circumstances, to proceed to determine the application.

4. After I delivered my reasons for judgment ex tempore, it emerged that the applicant had sought, this morning, immediately prior to the hearing, to discontinue his application.  Notice of his intention to seek leave to discontinue had not been given in accordance with the Federal Court Rules.  Nonetheless, I was prepared to vacate this judgment (which had not yet been formally entered) if the applicant indicated that he was prepared to discontinue the proceeding rather than have judgment entered against him.  However, the applicant did not respond to a letter from the representatives of the respondent offering him this option, on condition that he pay the respondent’s costs.  Accordingly, I have proceeded to formalise the order dismissing this application with costs, and to publish my reasons for judgment.

   FACTUAL BACKGROUND

5. The applicant is a citizen of Sri Lanka.  He arrived in Australia on 5 February 1996.  On 30 June 1997 he lodged an application for a protection visa.  On 14 August 1997 a delegate of the Minister for Immigration and Multicultural Affairs rejected that application.  On 16 September 1997 the applicant applied for a review of that decision by the Tribunal. 

6. The Tribunal summarised the applicant’s claims, and the evidence upon which he relied, in the following terms:

   “In the submissions in support of his application dated 23 June 1997, the Applicant declared.

   (1)I am Sinhalese national of Sri Lanka, and was born on 26 December 1975 in Colombo.  I am of the Buddhist religion. I was educated at DS Senanakake College in Colombo.

   (2)In Grade 8 I met and became close friends with a Tamil boy, Ramiya Srinanwadma (Podian). Podian's parents and brother had been killed in Jaffna and he was boarding in Colombo with a family and going to the same school.  He was forced to finish his studies earlier than me in 1991 because he could not afford to pay.  I asked my father whether he could be given a job in our family's grocery wholesale agency “Fair Deal Enterprises”.  My father gave Podian a position as a warehouse assistant and accommodation was provided at the back of the warehouse.

   (3)From 1991 to 1995 1 worked with Podian in the family business.  I was working part time for most of that period while I finished my schooling and Podian was my assistant with accounting and deliveries.  In May 1995 my father left to go overseas to Dubai for 2 months.  While my father was away I had to work full-time in the business.  After my father came back to Sri Lanka, I continued to work full-time in the business. In early December 1995 Podian asked me and my father if he could take a holiday from work for 3 days. He said he wanted to visit relations and he gave me an address of a place where he said he would be staying. The address showed that it was in a Tamil area in Colombo.  My father and I agreed that he could go.  Podian asked if he could take some supplies with him from the store.  He selected a quantity of chocolate and batteries and he paid for what he said he had taken.

   (4)After 3 days he had not returned.  I have not seen Podian since that time and I do not know what has happened to him. After one week two police came to the shop and warehouse where I was working and asked questions about Podian.  They wanted to know how I knew him.  They left after I told them about our childhood friendship at school.  The police returned a day later while I was out of the shop and my mother later told me they had left a message telling me to go to the police station.  I did not go.  A day later the police came back to the shop and then visited my house where they took me to the police station.  I was questioned and threatened for approximately 24 hours.  They kept me at the station in a room overnight. My father arrived the next morning to get me out.  It was clear that the police believed I was involved in supplying goods to the Tamil Tigers.  During the questioning I had handed the police the address that Podian had given me.

   (5)When my father and I returned to the warehouse we searched the supplies to check if things were missing.  We discovered that approximately 14 boxes each of batteries, milk powder and chocolate were missing and unaccounted for.  We spoke to neighbouring shopkeepers who remembered seeing vans occasionally outside our warehouse at night.  At the time they believed it was some legitimate business of ours.  We realised then that Podian must have been involved in supplying these things to the Tigers as the police already seemed to know.  I then went with my father to check the address that Podian had left with me.  When we got there it was the wrong address.  No-one there knew of Podian.  I suddenly realised that my closest friend had been lying to me.  I began to believe that he was connected with the Tamil Tigers.  I remembered that he had always received a lot of mail addressed in Tamil and I began to feel suspicious of many things that he had said to me.

   (6)One week later the police returned to the shop.  Again, I was not there and my father spoke to them.  The police said that they had also gone to the address I had provided and finding it to be false, thought that I was lying to them and that 1 was involved in some way with the supply of goods to the Tigers because I was making money out of it.  I was staying with an aunt in another part of Colombo by this time because I was frightened about the attention the police were giving me.  The police wanted to know where I was but my father said that he did not know.  The news about Podian's disappearance and suspicions of my own involvement had got out into the local community.  People had started looking at me very differently and I did not feel safe continuing to stay there.  This was why I had already relocated to my aunt’s.  My father contacted me there and told me that the police were wanting to question me again . I said to him that I thought I should leave Sri Lanka as soon as possible. I had been considering the idea of applying to be an international student in Australia before this incident happened and I had recently received my Sri Lankan passport.  My father agreed that it was a good idea to go immediately.  I applied for a student visa and a position at Holmesglen TAFE.  I was granted the visa on 1 February 1996 and I came to Australia immediately.  In the period between leaving my father's house in late December and flying to Australia on 5 February 1996 I moved around between friends’ places.  I did not stay the night at my family's house at any time because of the risk that I would be caught there by police.

   (7)Because of these experiences I strongly believe that it is dangerous for me to go back to Sri Lanka. The Sri Lankan police have reason to believe that I have at one time been connected with the Tamil Tigers.  I genuinely believed their threats that they would kill me.  I am also afraid that if Podian is still alive and operating with the Tigers that I will be considered a threat to them also.  I am also fearful of facing the people of my community in Colombo because they now believe that I have been involved in something which they oppose.  For these reasons I do not wish to return to Sri Lanka.”

7. At the hearing before the Tribunal on 26 April 2000 the applicant essentially repeated these claims.  However, the Tribunal also had available to it some additional material.  That material included a United States report on conditions in Sri Lanka, and a DFAT cable.  In its reasons for decision the Tribunal noted that the DFAT cable made it clear that the applicant, as a Sinhalese, was unlikely to be suspected of involvement with the Liberation Tigers of Tamil Eelam (“the LTTE”). 

8. The Tribunal found that:

   “The purported actions of the Applicant in hiding from and not cooperating with the authorities in their inquiries to find an LTTE suspect are just not consistent with this country information and the Sinhalese people’s opposition to the LTTE.”

9. The Tribunal found that when the applicant spoke of Podian not having shown him proper respect and of his having worked 7 days a week what he said was credible.  The Tribunal also accepted the applicant’s account concerning Podian having worked in the applicant’s father’s business.  However, the Tribunal did not accept that Podian was an LTTE member or that he had ever been suspected by the authorities of belonging to that organisation.  It found that the applicant had not been “questioned or threatened” as he claimed, and it found that he “did not face the wrath of his community over this claimed LTTE member”.

10. The Tribunal noted that the applicant had indicated that he had considered coming to Australia as a student well before the alleged incident involving Podian.  The Tribunal also noted that the applicant had acknowledged that as recently as a week prior to the hearing the applicant and his wife had proposed to travel to Sri Lanka.  The applicant’s explanation at the hearing was that he had changed his mind about the visit because his father told him it was not safe as “they” were still looking for him.

11. The Tribunal found that the fact that, shortly before the hearing, the applicant had booked to travel to Sri Lanka indicated that he had no fear of being subjected to mistreatment or violence in that country.  This confirmed its view that Podian had never been a member of the LTTE and that the authorities were not seeking to question the applicant about his involvement with Podian.  The Tribunal found the applicant's evidence that, after speaking with his father, he again suddenly feared returning to Sri Lanka, to be unconvincing.  It noted that shortly after the hearing, on 10 May 2000, the applicant had applied for a bridging visa to allow him to travel to Sri Lanka in order to see his father who was said to be ill.

12. By reason of these matters the Tribunal found that the applicant did not have a fear of returning to Sri Lanka which was based upon any of the Convention related grounds.  It concluded that he would not face any chance (let alone a real chance) of persecution for any such reason, including any imputed pro-LTTE political opinion.  The Tribunal therefore affirmed the decision by the delegate not to grant the applicant a protection visa.

    CONCLUSION

13. An applicant for a review of a judicially reviewable decision in this Court must make out one or more of the grounds set out in s 476(1) of the Migration Act 1958 (Cth). In my view, the applicant in this proceeding has failed to point to any ground contained within that provision which could conceivably give rise to a ground of review. Having read with care what the Tribunal said in rejecting the applicant’s claim, I am unable to discern any error in its reasons for decision. All that can be said is that the Tribunal did not accept the applicant’s account of what occurred in Sri Lanka prior to his departure from that country. That finding was open on the material before the Tribunal. It is not properly subject to review in this Court.

14. It follows that the application for review must be dismissed.  The applicant must pay the respondent's costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

Associate:

Dated:             22 March 2001

Counsel for the Applicant:	No appearance
Counsel for the Respondent:	Ms M Yannicos
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	22 March 2001
Date of Judgment:	22 March 2001