Mihindukulusuriya v Minister for Immigration and Multicultural Affairs

Case [2000] FCA 1526

FEDERAL COURT OF AUSTRALIA

Mihindukulusuriya v Minister for Immigration & Multicultural Affairs [2000] FCA 1526

PATABENDIGE SHAVINDRA SRINATH FERNANDO MIHINDUKULUSURIYA v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
V 208 OF 1999

SUNDBERG J
27 OCTOBER 2000
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 208 OF 1999

BETWEEN:

PATABENDIGE SHAVINDRA SRINATH FERNANDO MIHINDUKULUSURIYA
APPLICANT

AND:

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

SUNDBERG J

DATE OF ORDER:

27 OCTOBER 2000

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The application be dismissed.

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

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 208 OF 1999

BETWEEN:

PATABENDIGE SHAVINDRA SRINATH FERNANDO MIHINDUKULUSURIYA
APPLICANT

AND:

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

SUNDBERG J

DATE:

27 OCTOBER 2000

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

BACKGROUND

  1. The applicant is a 24 year old Sri Lankan man who was born in Wellawatte, in the Western Provinces of that country.  He arrived in Australia on a student visa on 29 May 1996, and lodged an application for a protection visa on 8 November 1996.  The applicant claimed to have left Sri Lanka because he feared persecution because of his religion, and because of political beliefs it was perceived he held.  His application was refused by the Minister’s delegate.  On review, the decision was affirmed by the Refugee Review Tribunal (“the Tribunal”).  The applicant has applied to the Court for a review of the Tribunal’s decision.

    EVIDENCE BEFORE THE TRIBUNAL:

  2. The applicant is a Roman Catholic of Sinhalese ethnicity.  He claimed his father and his uncle, a Tamil, owned a business that sold coconut oil.  Coconut oil is used for cooking and in temple offerings. The business supplied it in bulk to Tamil areas where the uncle had contacts.  His father was the silent partner in the business.  The father was a strong supporter of the United National Party (UNP), which unsuccessfully contested the August 1994 Sri Lankan elections.  The applicant’s father became depressed as a result of this loss, and ceased to take an active role in the family business.  As a result, the applicant began to work in the business, under his uncle’s supervision.  He began in the business by visiting areas to deliver the oil, but later took on a management role.

  3. The applicant claimed that his family decorated the business premises to celebrate the Pope’s visit in January 1995, and this provoked an angry response from the Buddhist population in his village.  It was alleged that the local Buddhist monks made threats against the family and told them not to hold a large function.  The applicant’s father went to the police to complain about this, but nothing was done.  The decorations were not taken down, but no damage was done to the business.

  4. In the early part of 1995 there was a ceasefire in the war between the Government forces…

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Details
AGLC
Mihindukulusuriya v Minister for Immigration and Multicultural Affairs [2000] FCA 1526
Case
[2000] FCA 1526
Decision Date

CaseChat Overview and Summary

The case of Mihindukulusuriya v Minister for Immigration and Multicultural Affairs involves a 24-year-old Sri Lankan man who sought a protection visa in Australia due to claims of persecution related to his religion and perceived political beliefs. His application was rejected by the Minister’s delegate and upheld by the Refugee Review Tribunal. The applicant sought judicial review of the Tribunal's decision. The applicant, a Roman Catholic of Sinhalese ethnicity, alleged that he faced threats and harassment due to his family's business, which supplied coconut oil to Tamil areas, and their celebration of the Pope's visit in 1995. He further claimed that his name appeared on documents indicating his business had violated the government's embargo on supplies to Tamil areas. He was also detained and questioned by unidentified individuals and later arrested following a bombing incident.

The primary legal issue before the court was whether the applicant had a well-founded fear of persecution in Sri Lanka based on his religion or political opinion, as required for a protection visa under Australian law. The court had to consider the applicant's evidence and the credibility of his claims. It also needed to determine if the threats and incidents he described constituted persecution sufficient to warrant protection. The court reviewed the evidence presented by the applicant and the findings of the Tribunal, assessing the consistency and plausibility of the applicant's account.

In dismissing the application, the court found that the applicant's claims were not sufficiently substantiated to meet the legal threshold for a protection visa. The court questioned the credibility of some of the applicant's assertions and found that the evidence did not support a finding that he would face persecution if returned to Sri Lanka. The court concluded that the applicant's fear of persecution was not well-founded.

The court ordered that the application for judicial review be dismissed and that the applicant pay the respondent's costs of the application. This decision reflects the court's determination that the applicant had not demonstrated a valid basis for protection under Australian law.

Orders

Orders of the court

1. The application be dismissed.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant is a 24 year old Sri Lankan man who was born in Wellawatte, in the Western Provinces of that country. He arrived in Australia on a student visa on 29 May 1996, and lodged an application for a protection visa on 8 November 1996. The applicant claimed to have left Sri Lanka because he feared persecution because of his religion, and because of political beliefs it was perceived he held. His application was refused by the Minister’s delegate. On review, the decision was affirmed by the Refugee Review Tribunal (“the Tribunal”). The applicant has applied to the Court for a review of the Tribunal’s decision. EVIDENCE BEFORE THE TRIBUNAL: The applicant is a Roman Catholic of Sinhalese ethnicity. He claimed his father and his uncle, a Tamil, owned a business that sold coconut oil. Coconut oil is used for cooking and in temple offerings. The business supplied it in bulk to Tamil areas where the uncle had contacts. His father was the silent partner in the business. The father was a strong supporter of the United National Party (UNP), which unsuccessfully contested the August 1994 Sri Lankan elections. The applicant’s father became depressed as a result of this loss, and ceased to take an active role in the family business. As a result, the applicant began to work in the business, under his uncle’s supervision. He began in the business by visiting areas to deliver the oil, but later took on a management role. The applicant claimed that his family decorated the business premises to celebrate the Pope’s visit in January 1995, and this provoked an angry response from the Buddhist population in his village. It was alleged that the local Buddhist monks made threats against the family and told them not to hold a large function. The applicant’s father went to the police to complain about this, but nothing was done. The decorations were not taken down, but no damage was done to the business. In the early part of 1995 there was a ceasefire in the war between the Government forces and those of the Liberation Tigers of Tamil Eelam (LTTE). However the ceasefire collapsed, and the conflict resumed in around April 1995. The new government had imposed an embargo on the supply of goods to Tamil areas, though this were not strictly enforced during the ceasefire. On occasion the business exceeded the restrictions that were placed on the supply of goods. Upon the resumption of hostilities, the business was required to pay out contracts and supply oil on condition that it not be distributed to the embargoed areas. The applicant claimed his name was on the documents that evidenced that the embargo limits had been exceeded. In around February 1995 he was taken to Udappu for questioning by a group of unidentified individuals who may have been aligned with one of the Ministers but who were not acting in an official capacity. The applicant described them as “thugs”. The group entered the business’ storage depot where the applicant was working. They did not go into the shop area, where the applicant’s father and uncle were, but instead took the applicant away to look for the business’ driver, who was a Tamil. The driver and other Tamils often parked outside the shop at night to sleep. As a result, said the applicant, the authorities thought the business had an association with the Tamil forces. The applicant was questioned for four or five days, and then released. Allegations were made against him that he had connections with the LTTE. His father succeeded in having him released. Upon his release he was told to report to his “headquarters” in Rome. He was made to understand that his incarceration was at the instigation of the Buddhist monks.The applicant also claimed he was taken into custody in October 1995, following the bombing of a fuel depot in Kolonnawa. The business had sold outboard motor parts to Tamil fishermen who lived in Weennappuwa, approximately sixty kilometres from Kolonnawa. The applicant was asked to identify a group of individuals, who he did not know, and was held for six days before being released on the condition that he not remain in Sri Lanka. The applicant’s father then made arrangements for him to come to Australia on a student visa. The father knew the appropriate people to bribe.

Decision

Reasons for decision

SUNDBERG J

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Ratio Decidendi

Legal Principle Established

Established by: SUNDBERG J

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