Kalansooriya v Minister for Immigration and Multicultural Affairs

[1999] FCA 1258

FEDERAL COURT OF AUSTRALIA

Kalansooriya v Minister for Immigration & Multicultural Affairs [1999]
FCA 1258

MIGRATION – application for review of decision of Refugee Review Tribunal refusing protection visa – applicant’s failure to appear – application determined ex parte

Migration Act 1958 (Cth), ss 36(2), 65(1), 420(2)(b), 425(1), 430(1)(c), 476(1)
Migration Regulations 1994 (Cth), reg 866.221

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577, cited

DARSHANA PUBUDU KALANSOORIYA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 554 OF 1999

JUDGE:  SACKVILLE J
PLACE:  SYDNEY
DATE:  10 SEPTEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 554 OF 1999

BETWEEN:	DARSHANA PUBUDU KALANSOORIYA Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	SACKVILLE J
DATE OF ORDER:	10 SEPTEMBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The application be dismissed.

2.   The applicant pay the respondent’s costs of the proceedings.

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 554 OF 1999

BETWEEN:	DARSHANA PUBUDU KALANSOORIYA Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	SACKVILLE J
DATE:	10 SEPTEMBER 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

The Application

1. This is an application, pursuant to s 476(1) of the Migration Act 1958 (Cth) (“Migration Act”), to review a decision of the Refugee Review Tribunal (“RRT”) made on 13 May 1999.  The RRT affirmed a decision made by a delegate of the Minister on 7 July 1997, refusing to grant the applicant a protection visa.

   Legislation

2. Under s 65(1) of the Migration Act, the Minister may grant a visa only if satisfied that the criteria prescribed by the Migration Act or the regulations have been satisfied.  A criterion for the grant of a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees (“Convention”): Migration Act, s 36(2). That criterion for a protection visa is fulfilled where, at the time of the decision, the Minister “is satisfied that the applicant is a person to whom Australia has protection obligations under the [Convention]”: Migration Regulations 1994 (Cth), reg 866.221.

3. Article 1A(2) of the Convention defines a refugee as 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 to, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

   Background

4. The proceedings were instituted in this Court by an application filed on 10 June 1999.  The first directions hearing was held on 22 July 1999.  The orders made on that occasion required the respondent to prepare a bundle of relevant documents.  That was done in due course.  The applicant was also directed to file and serve any material upon which he intended to rely by 19 August 1999.  In the event, no such material was filed. 

5. At the first directions hearing, the matter was listed for hearing today, 10 September 1999.  The applicant was directed to file and serve written submissions by 3 September 1999.  It was noted at the directions hearing that the applicant's submissions could, if necessary, be interpreted by an interpreter at the hearing.  The respondent was directed to file and serve written submissions by 8 September 1999.

6. This morning, by a facsimile transmission apparently sent at 8.40 am, the Registrar received what purports to be a copy of a medical certificate signed by a general practitioner.  The medical certificate is dated 10 September 1999 and certifies that the applicant is unfit to work during the period 9 to 11 September 1999, by reason of gastro-enteritis.  The applicant has added a handwritten note seeking an adjournment.

7. Mr Peek, who appears for the Minister, has pointed out that the first hearing before the RRT was adjourned by reason of medical certificates lodged by the applicant the day before the hearing was scheduled to take place.  I do not think that this of itself is significant for present purposes.

8. What is more significant is that the copy medical certificate received by the Registrar merely certifies that the applicant is unfit for work for three days.  It does not say that the applicant is not well enough to attend Court.  The certificate is on a printed form and there is nothing to indicate that the general practitioner was told of the impending Court hearing, nor that he was asked to direct his mind to whether the applicant would be able to attend Court to seek an adjournment.  Moreover, the certificate, which is dated 10 September 1999, states that the applicant was unfit for work on 9 September 1999.  Despite being unfit for work on 9 September 1999 (according to the certificate), the applicant made no contact (for example, by telephone) with the Court or the Minister’s legal representatives prior to this morning to suggest that an adjournment might be sought.

9. In considering the adjournment application, I have also taken into account that the application does not identify with any specificity any grounds upon which the applicant relies to set aside the RRT’s decision.  Nor has the applicant complied with the directions to file submissions in support of his case.

10. In the circumstances, I think that the appropriate course is to address the issues raised by the application for review of the RRT’s decision.  I therefore reject the applicant’s request for an adjournment.

    The Applicant’s Claims

11. The applicant is a citizen of Sri Lanka.  He arrived in Australia as a student in 1996.  He applied for a protection visa on 30 June 1997.

12. The applicant did not substantiate the reasons for his claim for refugee status in his application for a protection visa, stating that he would provide a statement in support of his application within one week of filing the application.  In fact, the applicant had not provided a statement when the Minister’s delegate refused him refugee status (a week after the filing of the application).  Nor did he provide a statement when he filed his application for review to the RRT on 29 July 1997.

13. In the absence of any claims substantiating the applicant’s claim for refugee status, the RRT considered that it could not make a decision in the applicant’s favour on the papers alone.  On 14 January 1999, the RRT advised the applicant of this and a hearing was arranged for 16 March 1999.  The hearing was adjourned to 29 March 1999 by reason of the medical certificates supplied by the applicant.

14. At the hearing, the applicant was represented by a solicitor and assisted by a Sinhalese interpreter.  At that time, the applicant provided a statutory declaration to the RRT.

15. In the statutory declaration, the applicant claimed to have been involved with the banned Sinhalese left-wing organisation, the Janatha Vimukthi Peramuna (the “JVP”) since 1988.  At that time, the applicant was fifteen years old and living with his mother (his father having died when he was eleven years old).  The applicant stated that he had become involved with the JVP as a result of his close relationship with Gamini Wijesundera, a respected person who lived in the applicant’s local area and was employed by the JVP.

16. The applicant stated that in 1989, the bodies of Gamini Wijesundera, and another full-time employee of the JVP were found burnt on the roadside, following their arrest by security forces.  The applicant stated that his mother had become fearful for his safety after these deaths.  On his mother’s advice, he went to live with his uncle in Elpitiya.  The applicant’s uncle was a Provincial Council member of the ruling United National Party, and the applicant and his mother believed that his uncle’s political influence would protect him.

17. Nonetheless, the applicant stated that he had been arrested in April 1990 and taken to the Moratuwa police station.  He was interrogated about his friends and tortured for two months, before being sent to the Boosa detention camp for political prisoners near Galle in June 1990.  He was then sent to a rehabilitation camp, where he remained until he was released in January 1993.

18. The applicant stated that he had then travelled to Meepawala, a village in southern Sri Lanka, where an uncle of his had lived.  A Tamil named Sinnathamby took him in.  The applicant soon became friendly with Sinnathamby’s son and daughter, who supported Tamil self-determination, and were involved with the Liberation Tigers of Tamil Eelam (the “LTTE”).

19. The applicant said that he and the daughter, Sulochana, eventually decided to marry. Sinnathamby did not object to the marriage, although the marriage triggered criticisms from Sinhalese in the area.  The applicant said that he and his wife developed close friendships with many Tamil youngsters who supported the LTTE.

20. The applicant and his wife moved to the applicant’s family home in Moratuwa in March 1993.  Whilst they were living there, the applicant obtained a Diploma in Computer Programming at the Sri Jinaratna Adhyapana Palaka Sabhawa, and was thereafter appointed as an instructor at the same institution, where he worked until 1994.  From 1994 until December 1995, the applicant worked as a programmer for Flexi Micro Systems, a job which he obtained (he said) through his wife’s Tamil contacts.  His wife continued her involvement with the LTTE.

21. The applicant claimed that on 12 December 1995 he was arrested following a bombing of Army headquarters in Colombo by two LTTE suicide bombers.  The applicant claimed that he was severely tortured during questioning, and suffered serious injuries to his right leg.  He claimed that he was kept in detention until 30 January 1996, when he was released after his mother and brothers paid a bribe of $50,000.

22. The applicant said that he had again been arrested in April 1996, when he was taken to the Grandpass police station.  He had heard that his wife had also been arrested.  He claimed to have been placed in isolation, beaten and tortured.  He remained in Grandpass police station for two weeks before a magistrate sent him to Magazine Prison.  The applicant said that he was released on bail towards the end of April, after his brother paid a bribe of 100,000 rupees to the Grandpass police.

23. The applicant stated that, after he was released, he learnt that his wife had disappeared from police custody.  He stated that her body was later found on the shore of the Mutwal Sea.  A post-mortem found that she had died of grievous injury caused by assault.  The applicant identified his wife’s body in a police morgue, but did not claim the body.

24. The applicant said that he then made arrangements to leave the country.  He was granted a student visa to travel to Australia on 11 July 1996.  He left Sri Lanka on 15 July 1996.  He was able to leave the country easily after his cousin (a Senior Ground Handling Officer at the airport) bribed the Immigration Officers.

25. The applicant claimed that, after arriving in Australia, he had spoken to his brother by telephone.  He had been informed by his brother that the police had obtained a warrant for his arrest and had searched for him at his home.

26. The applicant claimed that he visited the Immigration Department in Sydney in December 1997 to seek their advice about applying for a protection visa.  He was granted a subclass 435 visa (a humanitarian concession granted to certain Sri Lankans).  However, after speaking with a Sri Lankan lawyer friend, he subsequently applied for a protection visa.

    The RRT Decision

27. The RRT considered that there were significant discrepancies in the applicant’s account.  The most important was that his original application had stated that he was unmarried, while his claim before the RRT was that his difficulties in Sri Lanka were caused largely by his marriage to a woman heavily involved with the LTTE.  The applicant had experienced difficulty remembering when he had been married and was vague about the dates of other important events.

28. The RRT also considered many aspects of the applicant’s account of events to be implausible.  In particular, the RRT found that applicant’s description of his and his wife’s Tamil and JVP philosophies as being well-matched to be implausible, since the JVP was “bitterly opposed” to the creation of an independent Tamil state and had violently opposed moves in that direction.

29. The RRT had been unable to find any record of an LTTE suicide bombing in Colombo on or around 12 December 1995, the date the applicant claimed to have been arrested.  This cast doubt on the applicant’s version of events.  It was also implausible that he should have been able to leave Sri Lanka on a passport in his own name when (on his own account) he was on bail facing charges under the Prevention of Terrorism Act.

30. The RRT expressed its conclusion as follows:

    “Having regard to the Applicant’s delay in lodging his application and his subsequent delay in lodging any statement of the basis upon which he claimed to be a refugee and having regard to the inconsistencies in the Applicant’s evidence and those aspects of his account which I consider to be implausible… I do not accept that the Applicant is telling the truth about his past experiences in Sri Lanka… I do not accept that he was ever arrested or detained in Sri Lanka, wither by reason of his supposed involvement with the JVP or by reason of his supposed marriage to a Tamil woman involved with the LTTE.  I consider that he has demonstrated such a lack of understanding of the political stance of the JVP in relation to an independent Tamil homeland as to cast doubt on his claims regarding his involvement with that organisation.  I consider that his answer in his original application that he had never been married was the truth and that his claims in his statutory declaration that he married a Tamil woman involved with the LTTE and that he was accused of giving the LTTE information as a result are a fabrication concocted for the purpose of providing a basis for his application for a protection visa.”

31. The RRT said that, even if it were to accept the applicant’s claims regarding his involvement with the JVP, it did not accept that the applicant would be in any danger of being persecuted for this reason if he were to return to Sri Lanka.  In this regard, the RRT referred to Department of Foreign Affairs and Trade advice that, because the JVP is no longer a proscribed political organisation, persons are no longer detained simply because of present or past membership of the JVP.

32. Similarly, the RRT found that, even if it were to accept that the applicant had been charged under the Prevention of Terrorism Act, for giving information to the LTTE, it did not consider that these facts would bring him within the definition of “refugee” in the Convention.  The RRT considered the punishment that a Sinhalese person involved with the LTTE would receive as a traitor would be properly characterised as a punishment for the breach of a law of general application in Sri Lanka rather than persecution for a Convention reason.  The RRT did not consider that the applicant would be treated differently, or punished more severely for such an offence, for any Convention reason.

33. Accordingly, the RRT was not satisfied that the applicant was a person to whom Australia had protection obligations under the Convention and affirmed the decision not to grant him a protection visa.

    Reasoning

34. The application refers to s 420(2)(b) of the Migration Act. However, to the extent that the applicant claims that the RRT failed to act in accordance with “substantial justice and the merits of the case” (Migration Act, s 420(2)(b)), that allegation does not establish a ground of review available under the Migration Act: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577.

35. There is nothing to indicate that the RRT failed to provide the applicant with an opportunity to give evidence, as required by s 425(1) of the Migration Act. Nor did the RRT breach its obligation to make findings on material questions of fact as required by s 430(1)(c) of the Migration Act. As Mr Peek submitted, the RRT addressed the factual claims put forward by the applicant and gave detailed reasons for rejecting each of those claims.  It was entirely a matter for the RRT to determine whether it was satisfied as to the applicant’s factual claims on which he based his claim to fear persecution if he were returned to Sri Lanka.

36. The application alleges in a general fashion that the RRT failed correctly to apply the definition of “refugee” contained in the Convention.  However, there is nothing in the reasons of the RRT which suggests that the RRT had incorrectly applied the principles governing the construction of the Convention.  The RRT states the principles in unobjectionable terms.

37. In these circumstances, it seems to me that there has been nothing put forward that suggests that the RRT’s decision should be set aside.  Accordingly, the application should be dismissed, with costs.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated:             10 September 1999

Counsel for the Applicant:	None
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	10 September 1999
Date of Judgment:	10 September 1999