Gunawardene v Minister for Immigration and Multicultural Affairs

[2000] FCA 1293

FEDERAL COURT OF AUSTRALIA

Gunawardene v Minister for Immigration & Multicultural Affairs
[2000] FCA 1293

NO QUESTION OF PRINCIPLE

Migration Act 1958 (Cth) s430(1)(b)

WARNAKULASURIYA KENNETH FELICIAN TISSERA GUNAWARDENE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 350 of 2000

MARSHALL J
MELBOURNE
15 SEPTEMBER 2000

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 350 of 2000

BETWEEN:	WARNAKULASURIYA KENNETH FELICIAN TISSERA GUNAWARDENE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MARSHALL J
DATE OF ORDER:	15 SEPTEMBER 2000
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
VICTORIA DISTRICT REGISTRY	V 350 of 2000

BETWEEN:	WARNAKULASURIYA KENNETH FELICIAN TISSERA GUNAWARDENE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MARSHALL J
DATE:	15 SEPTEMBER 2000
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an application for an order of review in respect of a decision of the Refugee Review Tribunal (“RRT”) to refuse to grant the applicant, Mr Gunawardene, a protection visa.

   Background

2. Mr Gunawardene is a citizen of Sri Lanka. He is of Sinhalese ethnicity and is 32 years old. Mr Gunawardene is married with two children. His wife made a separate application for a protection visa, the refusal of which led to her making a separate application for an order of review. That matter is the subject of separate reasons for judgment delivered this day.

3. Mr Gunawardene first entered Australia on 24 November 1995 as the holder of a visitor’s visa. He returned to Sri Lanka on 16 May 1997 and re-entered Australia on 16 June 1997.

4. The application for a protection visa was lodged with the respondent’s department on 1 July 1997. On 15 October 1997, a delegate of the respondent refused the application.

5. On 10 November 1997, Mr Gunawardene applied to the RRT for a review of the delegate’s decision. On 11 April 2000, a hearing took place before the RRT. The RRT affirmed the decision of the delegate and published its reasons for decision on 14 April 2000.

   Facts found by the RRT

6. The RRT found the following relevant facts to be established:

   ·    Mr Gunawardene worked in a technical occupation in Sri Lanka.

   ·    Mr Gunawardene had some Tamil customers with alleged links to the Liberation Tigers of Tamil Eelam (“the LTTE”).

   ·    Mr Gunawardene made some alterations to equipment at the request of those customers.

   ·    Mr Gunawardene became suspicious in the mid 1990s when he was asked to make some unusual changes.

   ·    When Mr Gunawardene was asked to modify a particular piece of equipment, he refused to do so and his customer became angry.

   ·    Mr Gunawardene reported his suspicions to a friend who was a policeman.

   ·    If, contrary to the RRT’s belief, Mr Gunawardene was detained and beaten by members of the Army, he was released after some hours and not thereafter harassed by the Army.

   ·    Mr Gunawardene does not fear the Army, he only fears the LTTE.

   ·    If Mr Gunawardene’s brother was bashed because he refused to tell the LTTE of Mr Gunawardene’s whereabouts, Mr Gunawardene continued to live in the same apartment in Colombo for the following several months.

   ·    When Mr Gunawardene first came to Australia he did not apply for a protection visa. He returned to Sri Lanka, where his wife and child had been left.

   ·    Mr Gunawardene has not reported to the authorities any of the alleged threats made against him or any relevant suspicion he has about the LTTE desiring to do harm to him.

   ·    Mr Gunawardene has concocted his claim that he is being sought by the LTTE. But if he was being sought, it was because a particular individual wanted to do him harm and not the LTTE per se.

   ·    The particular individual concerned, a Mr X, was motivated purely by revenge and was pursuing an activity which was “disinterestedly individual”.

   ·    Sri Lankans who have fallen foul of suspected LTTE members because they refuse to carry out work for the LTTE are a disparate group with no “unifying feature that makes those people a cognisable group within their society”.

   ·    Mr Gunawardene has not been harmed by Mr X or anyone on behalf of Mr X.

   ·    Sr Lankan security forces are willing and able to extend effective protection to people under threat from the LTTE.

   ·    Ethnic Sinhalese would only very rarely be suspected of affiliation with the LTTE.

   ·    “Colombo is under constant and stringent security arrangements to prevent LTTE attacks in that city”.

   Credibility findings

7. The RRT made the following significant adverse credibility findings about Mr Gunawardene’s evidence:

   ·    It is implausible that Mr Gunawardene would report to a friend in the police force that his customer Mr X was likely to be an LTTE member and yet return to work and finish the job requested by the customer.

   ·    It is inexplicable that Mr X would follow Mr Gunawardene to the policeman’s house then let Mr Gunawardene escape.

   ·    It is not credible that the policeman would show little interest in Mr Gunawardene’s claims.

   ·    It is not accepted that Mr Gunawardene was detained and beaten by members of the Army.

   ·    It is not plausible that members of the LTTE would pass on a threat to Mr Gunawardene via his former work colleagues at his former workplace.

   ·    It is not credible that on return to Sri Lanka, Mr Gunawardene was able to hide his whereabouts by not informing his family of his whereabouts.

   ·    “It is implausible that [Mr] X, if he is a member of the LTTE, would spend several years searching for [Mr Gunawardene] whose only knowledge of him is that he asked for some equipment to be modified”.

   ·    Mr Gunawardene “has concocted his claims that he is being sought by the LTTE”.

   Political opinion

8. Miss S Moore, of counsel, appeared for Mr Gunawardene pursuant to the Court’s pro bono representative scheme. It was submitted by Miss Moore on behalf of Mr Gunawardene that the RRT erred by failing to consider whether Mr Gunawardene had a well founded fear of persecution on the ground of “political opinion” or “imputed political opinion”.

9. In considering that submission, it is important to bear in mind that the RRT did not believe Mr Gunawardene’s claim that he was sought by the LTTE. Consequently, it was open to the RRT to make a global finding that Mr Gunawardene did not have a well founded fear of persecution on any ground referred to in the Refugees Convention (being the 1951 Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the 1967 Protocol Relating to the Status of Refugees done at New York on 31 January 1967).

10. Additionally, it is important to recognise that the RRT found that, if contrary to its finding that Mr Gunawardene had concocted his claims about being sought by the LTTE, the claimed fear of Mr X arose not as a result of any Convention ground but as a result of Mr X’s personal animosity directed to Mr Gunawardene. The RRT said as follows (at p11-12 of its decision):

    “A close consideration of the claims leads the Tribunal to conclude the Applicant has concocted his claims that he is being sought by the LTTE. Even if he was being sought, his own evidence indicates that it was not the LTTE that sought to harm the Applicant but X and his colleagues. Further, X and his colleagues were motivated by revenge and not by any of the reasons in the Convention. The Applicant’s evidence does not disclose that they were motivated by his ethnicity, religion, political opinion or any other Convention reason.”(Emphasis supplied).

11. I reject Miss Moore’s submission that the RRT failed to consider whether Mr Gunawardene had a well founded fear of persecution on account of his political opinion or imputed political opinion. The RRT, albeit briefly and in the context of other Convention grounds, considered the question out of an abundance of caution. The issue did not truly arise once the RRT disbelieved Mr Gunawardene’s claims about being sought by the LTTE.

    Particular social group

12. It was also submitted, on Mr Gunawardene’s behalf, that the RRT erred in law by failing to find that Mr Gunawardene belonged to a particular social group, that is, those who do not support the LTTE.

13. Whether or not the RRT should have found that Mr Gunawardene belonged to such a group does not matter given the RRT’s ultimate finding that it disbelieved Mr Gunawardene’s claims that he was being sought by the LTTE. It is unnecessary therefore to determine if “those who do not support the LTTE” constitute a particular social group for the purposes of the Convention.

14. An allied submission made on behalf of Mr Gunawardene was that the RRT wrongly found that there was no nexus between Mr Gunawardene’s alleged fears of persecution and any Convention reason given that the alleged persecutor’s motives were personal. It may be that a persecutor may have personal as well as Convention based motives for persecution, but again, that issue did not ultimately arise as the RRT did not believe Mr Gunawardene’s claims that he was being sought by the LTTE.

    “Well founded fear of persecution”

15. Miss Moore submitted that the RRT erred by requiring that actual harm occur to Mr Gunawardene at the hands of his alleged persecutors before Mr Gunawardene could be said to have a well founded fear of persecution for a Convention reason. Mr C Fairfield, of counsel, appeared for the respondent. He submitted that the RRT did not intend to convey that it required actual harm to have occurred in order to find that Mr Gunawardene had a relevant well founded fear of persecution. Miss Moore also contended that the RRT erred in relying upon Mr Gunawardene’s delay in applying for a protection visa in assessing whether he had a well founded fear of persecution for a Convention based reason.

16. Once again, the answer to Mr Gunawardene’s contentions on this issue is that he simply was not believed on his assertion that he had a subjective well founded fear of persecution as the RRT found his account of events which amounted to his claim for refugee status to be a concoction.

17. Miss Moore also contended that the RRT erred in relying upon information contained in reports from the Department of Foreign Affairs and Trade (“DFAT”). The reports were from 1995. She submitted that the RRT should have relied on more recent material.

18. Mr Fairfield submitted that the RRT was entitled to rely on whatever material that, in its view, was relevant to its decision. He also contended that the RRT was entitled to rely on its own expertise.

19. I see no error of law in the RRT’s reliance on DFAT reports from 1995. The second of the reports was not adverse to Mr Gunawardene’s interests. The first report referred to a lack of “any recent plausible reports of Sinhalese suspected of sympathising with the LTTE”. In this context, it must be borne in mind that Mr Gunawardene’s claimed fear was not of the authorities punishing him for being an LTTE supporter but of the LTTE punishing him for reporting on it and failing to co-operate with it. However, once again, the question of reliance on DFAT reports must be seen in the context of a decision in which the evidence relied on by Mr Gunawardene to support his claim for refugee status has been disbelieved by the RRT.

    Section 430 issue

20. Miss Moore contended that if the RRT did, contrary to her earlier submissions, properly consider the issue of political opinion in the context of persecution for a Convention based reason, it failed to set out why Mr Gunawardene’s activities did not carry with them an imputation of political opinion. It was said that such failure equated to a failure to adhere to the requirement expressed in s430(1)(b) of the Migration Act 1958 (Cth) (“the Act”) that the RRT “prepare a written statement that … sets out the reasons for the decision”.

21. Once Mr Gunawardene was not believed on the question of whether he had a subjective well founded fear of persecution, it was not incumbent upon the RRT to describe what political opinion may have been imputed to Mr Gunawardene if he was believed on that question. Accordingly, there is no basis upon which to find that the RRT failed to comply with s430(1)(b) of the Act.

    Order

22. The application will be dismissed, with costs.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:             15 September 2000

Counsel for the Applicant:	Miss S Moore (who appeared pro bono)
Counsel for the Respondent:	Mr C Fairfield
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	7 September 2000
Date of Judgment:	15 September 2000