Dissanayake v Minister for Immigration and Multicultural Affairs

[2001] FCA 491

FEDERAL COURT OF AUSTRALIA

Dissanayake v Minister for Immigration & Multicultural Affairs
[2001] FCA 491

MIGRATION – review of decision of Refugee Review Tribunal – questions of fact

Migration Act 1958 (Cth) Pt 8

Re Minister for Immigration and Multicultural Affairs ex parte Durairajasingham (2000) 74 ALJR 405 at 417 to 418 applied

DISSANAYAKE MUDIYANSELAGE DISSANAYAKA v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NO V 673 OF 2000

HEEREY J
20 APRIL 2001
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 673  OF 2000

BETWEEN:	DISSANAYAKE MUDIYANSELAGE DISSANAYAKA APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	HEEREY J
DATE OF ORDER:	20 APRIL 2001
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        The applicant pay the respondent’s costs to be taxed, 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	V 673  OF 2000

BETWEEN:	DISSANAYAKE MUDIYANSELAGE DISSANAYAKA APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	HEEREY J
DATE:	20 APRIL 2001
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicant seeks review under Pt 8 of the Migration Act 1958 (Cth) of a decision of the Refugee Review Tribunal given on 21 August 2000 affirming the decision of a delegate of the Minister not to grant the applicant a protection visa. I incorporate by reference the reasons of the Tribunal. Before proceeding to deal with the particular grounds that were relied on by counsel for the applicant, the general approach of the Tribunal should be mentioned.

2. Basically the Tribunal did not accept the account given by the applicant of his experiences in Sri Lanka.  The Tribunal found this account implausible and gave reasons for reaching that conclusion.  In particular, the Tribunal considered it inherently unlikely that a man who was a Sinhalese and not a Tamil and who had lived and worked all his life in or near Colombo would be the subject of harassment or intimidation by the LTTE for fundraising.  In making that observation, the Tribunal relied on detailed country information reports.

3. Secondly, the Tribunal referred to the substantial delay between the time the applicant arrived in Australia, that is 16 October 1997, and his application for refugee status on 15 April 1998, the day his extended visa was about to expire.  The Tribunal was not satisfied as to the applicant's explanation of any of the reasons for those delays. 

4. The foregoing were matters of fact finding and factual inference which were entirely within the province of the Tribunal.

5. Counsel submitted that there was a failure to observe procedures required by the Act, (s 476(1)(a)) in that, contrary to s 430(1), the Tribunal did not set out findings on material questions of fact and refer to the evidence or any other material on which those findings were based. 

6. First, counsel referred to a passage (at CB 199) where the Tribunal quoted a Department of Foreign Affairs and Trade (DFAT) cable of 2 December 1998:

   “It is very unlikely they [ie the LTTE] would approach Tamils who have been living in Colombo for generations and have little or no contact with the north.  It is equally unlikely the LTTE would knock on the ordinary Tamil person's door for such assistance.”

   The Tribunal continued:

   “I find it implausible, based on the above country information about how the LTTE operates, that a Sinhalese person in Colombo would be targeted for blackmail or extortion by the LTTE.  It is clear that most LTTE funding comes from overseas, and where it does come from Sri Lanka, it comes from areas in the north and east under their control.  It is clear that DFAT advice rejects the notion of even Tamils in Colombo being harassed in this way except in very particular circumstances, which do not fit those of the applicant.  In these circumstances, it is particularly implausible that they would approach a business person of Sinhalese background who would have no sympathy with a Tamil terrorist group.”

7. It was said that the Tribunal did not provide reasons why the applicant did not fit into the “very particular circumstances” or indeed what those particular circumstances were. 

8. In my opinion this is at best a criticism of the fact-finding process of the Tribunal and the expression of its reasons.  I do not think there is any substance in the criticism.  The point being made by the Tribunal is an obvious one, namely that on the basis of the country advice it was unlikely that Tamils in Colombo would be harassed by the LTTE for fundraising.  It was even more unlikely that a Sinhalese would incur that problem.

9. The reference to “very particular circumstances” may not be spelt out in the reasons but obviously enough the Tribunal here was making allowance for the fact that there may in theory be some circumstances (none of which were referred to by the appellant) which may render Colombo Tamils liable to LTTE harassment..

10. Then counsel referred to a passage immediately following that just quoted, where the Tribunal said:

    “I further find it implausible that LTTE operatives in an area such as Colombo, which is clearly controlled by the government, would risk drawing attention to themselves in this way by not paying their telephone bills, and by seeking to extort money from someone in a government controlled area when it is clear that the LTTE is massively well-funded.”

11. It was said that in making this finding of fact the Tribunal did not refer to evidence.  But in my opinion this is an observation on the inherent unlikelihood of the suggested events having taken place.  The reason for the Tribunal’s disbelief is apparent from its use of the word “implausible”:  see Re Minister for Immigration and Multicultural Affairs ex parte Durairajasingham (2000) 74 ALJR 405 at 417 to 418.

12. Counsel then criticised the next passage:

    “I further find it implausible that, if the applicant were indeed regarded as a traitor to the LTTE in 1995 as he claimed, the group would simply have let him go on the basis of payment of money.  As noted earlier, the LTTE has no need to spend resources extorting funds from individuals.  However, it is clear that, when it considers a person to be a traitor, it deals ruthlessly with them.”

13. That was again said to be a failure to set out findings of fact or refer to evidence.  But there was in fact evidence, referred to elsewhere in the Tribunal’s reasons, of the ruthless nature of LTTE operations. 

14. Then counsel said that the Tribunal failed to deal with an alternative way in which the applicant put his case, namely that the government authorities may have considered that the use of his telephone company by LTTE persons in making many overseas phone calls showed that he was in some way connected himself with the LTTE.

15. This point was really dealt with by the conclusive finding on the general credibility of the applicant.  The Tribunal said (CB 201):

    “I have considered the information provided by the applicant about his accounts and debts owing.  However, this material does not demonstrate that he supplied money to the LTTE, nor that any of his customers were LTTE operatives, nor that the authorities in Sri Lanka were seeking him.”

16. Then counsel said that the Tribunal failed to consider the incident alleged to have happened in October 1997 detailed in par 22 of the applicant’s statement at CB 192.  But this incident is tied up with the man Weeravagu, who was said to have made the original extortion in December 1995.  The Tribunal simply disbelieved that.   At CB 201 it said:

    “Given that I do not accept that the applicant was ever pursued by the LTTE in the way he claims, I do not accept that any of the subsequent events such as the authorities searching his home, have occurred.”

    I think that plainly includes the alleged event of October 1997. 

17. Then counsel said there were errors of law within the meaning of s 476(1)(e). 

18. The first of these was that the Tribunal failed to take into account the possibility that its finding as to the applicant’s non-involvement with the JVP was wrong.  The Tribunal was, counsel said, obliged to take into account the possibility that the applicant may have been detained.  The Tribunal had not undertaken the “required speculation”.  Although counsel did not put it in as many words, the submission essentially called in aid the now discarded “What if I am wrong?” test.

19. The Tribunal made firm findings of fact about the claim that the applicant was an active supporter of the JVP, for reasons which on their face appear rational.  Just to take one example (at CB 196), the Tribunal points out the unlikelihood that the JVP would have distributed leaflets naming the applicant as a collector of money when such information could easily have been reported to authorities and therefore the JVP’s means of obtaining revenue as outlined by the applicant would have fast disappeared.

20. Secondly, counsel said that there was an error when the Tribunal said (at CB 201):

    “Further, there cannot be said to be a failure of state protection where there has been no attempt to seek such protection.”

21. Read in context I do not think that the Tribunal is there to be taken to be asserting an abstract general proposition.  Rather the statement appears in the context of the Tribunal pointing out that the applicant on his own account had a relative who was a former deputy inspector general of police and who therefore would be able to ensure that he dealt with the appropriate authorities.  No error of law is disclosed.

22. Finally counsel said that in general the Tribunal failed to apply the “real chance” test and engage in the required speculation.  In my opinion, read as a whole, the Tribunal carefully assessed the applicant’s claims and was not satisfied as to them and gave reasonable reasons why it had not reached that state of satisfaction.  This was plainly a case in which, if the applicant’s claims were substantially disbelieved, there could be no rational basis for finding that he had, objectively, a well-founded fear of persecution. 

23. The application will be dismissed with costs, including reserved costs.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate:

Dated:             2 May 2001    

Counsel for the Applicant:	Ms K Streckfuss
Solicitor for the Applicant:	Chandra Weerakoon
Counsel for the Respondent:	Mr J A Gibson
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	20 April 2001
Date of Judgment:	20 April 2001