Mihindukulusuriya v Minister for Immigration and Multicultural Affairs
[2000] FCA 1526
•27 OCTOBER 2000
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 1999SUNDBERG J
27 OCTOBER 2000
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 208 OF 1999
BETWEEN:
PATABENDIGE SHAVINDRA SRINATH FERNANDO MIHINDUKULUSURIYA
APPLICANTAND:
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
APPLICANTAND:
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
SUNDBERG J
DATE:
27 OCTOBER 2000
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
BACKGROUND
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.
In the seven months it took to arrange the visa the applicant was again threatened, this time when a stranger came to the business when the applicant was closing up. He pointed a gun at the applicant and said he would kill him and destroy the business if the applicant did not leave the country. The applicant reported the incident to the police, who did nothing. The applicant claimed he was kept under surveillance. Because of this he left his village in February 1996, and went to one 200 kilometres away. He stayed in the Catholic church there, and spent his nights working inside as a volunteer. He went outside as little as possible, and did so early in the morning, so as best to avoid other people. He did not try to relocate within Sri Lanka because he was afraid of the effect of the accusations against him and of the connections of the Buddhist monks.
THE TRIBUNAL’S FINDINGS
The Tribunal said it was not convinced by the applicant’s claims of detention and ill‑treatment. It held that a “major problem” with the applicant’s account was that he was not the owner of the business. The applicant’s father and uncle “were more likely targets for investigation if the business was involved in selling commodities and goods into Tamil areas”, and the explanation for the authorities’ failure to question the owners was found to be unsatisfactory and “implausible”. The Tribunal also noted the applicant’s inability to name any of the people who had threatened him, despite his having lived in the same small village (housing around 1000 people) for some years. The Tribunal “did not find it plausible that neither [the applicant] nor his father would attempt to find out more about those who threatened the applicant.”
The focus of the investigations was also noted. Both exceeding the limits of sales to the Tamil area, and the sale of outboard motor parts to Tamils, could properly have been the subject of official investigations. The Tribunal “was not satisfied with the applicant’s account as to why anonymous people needed to take him into detention when it could have been done officially and legally”. The Tribunal also said:
“There is nothing obviously persecutory in government officials checking on and questioning business people who offend against regulations in place to try to quell civil conflict.”
The fact that the applicant obtained a visa from the government was treated as indicative that the authorities did not regard him as having connections with the LTTE, and that he did not have anything to fear from the authorities.
The Tribunal was also not satisfied that the applicant had a reasonable fear of persecution on account of his religious beliefs. It accepted that the Pope’s visit may have caused an increase in the tensions that sometimes exist between the Buddhist and Catholic communities. However there was no evidence before the Tribunal of a general persecution of Catholics by Buddhists. The applicant’s specific story was held to be unconvincing, because of his inability either to identify the individuals within his own village who perpetrated the acts alleged, or to explain why his family should be singled out. Furthermore, on the applicant’s own evidence, no damage was done to the business or the decorations, so no persecution resulted from any tensions that may have existed. The applicant’s claims that his detentions were the result of actions by a Buddhist priest or priests was also discounted because he could not identify who specifically would seek to target him.
GROUNDS OF REVIEW
Only one ground of review was pursued. This was that the Tribunal failed to comply with the procedures prescribed by s 430(1) of the Migration Act 1958. As originally formulated, the only complaint was that the Tribunal did not refer to the evidence or other material on which its findings of fact were based. The relevant “finding” is in that part of the decision in which the Tribunal said it was not satisfied with the applicant’s account of his detention by the thugs who visited the oil business in February 1995, and his later detention after the explosion at the oil depot at Kolonnawa. The Tribunal said his claim that he was the only person taken for questioning “sits oddly with the circumstances”. It continued:
“If the family business had been selling over‑limit oil to the Tamil areas, then the owner, not the young son, would seem to be the more reasonable target for questioning. Had the business sold outdoor engines to Tamil fishermen, then again it is reasonable to assume that those who owned the business (one of whom was a Tamil and worked often in the shop) would be questioned first.”
The Particulars of the ground of review assert that the Tribunal had not referred “to the issue that the applicant was the significant person in the conduct of the family business because his father, as owner, had transferred the management of the business” to him. This is not a complaint that falls within s 430(1)(d). Paragraph (d) is directed to the evidence or other material on which a finding of fact is based. The Tribunal’s observation that the father and uncle, as the owners of the business, would seem to be the more reasonable target for questioning, is in the nature of an impression, conclusion or judgment, rather than a finding based on evidence. The applicant’s real complaint is that the Tribunal did not deal with his claim that he was managing the business before either of the detentions took place, and that that was the reason he and not his father and uncle were detained and questioned. I will deal with this complaint later.
At the hearing I gave the applicant leave to amend his grounds of review by adding complaints based on s 430(1)(b) and (c) ‑ that the Tribunal had failed to set out its reasons for decision (par (b)) and had failed to set out its findings on material questions of fact. The Particulars in support of the added grounds are the same as those in support of the original ground: see par 10.
The purpose of the requirement in s 430(1)(b) that the Tribunal set out its reasons for decision is so an unsuccessful applicant can understand why his application failed. In the present case the applicant could be in no doubt as to why he was unsuccessful. The reasons he failed are clearly set out:
·the Tribunal did not believe (did not find “convincing”) his claim that he had been threatened over his connections with the LTTE or Tamils
·the Tribunal did not believe (did not find “convincing”) his claim that he had been detained, questioned and ill‑treated on two occasions
·the applicant was unable to clarify confusing aspects of his account to the satisfaction of the Tribunal
·the Tribunal did not accept the applicant’s explanation for the authorities’ failure to question the owners of the business (the father and uncle) rather than him
·despite the fact that the applicant was living in a small village in which the oil business operated, he was unable to name any of the persons who threatened him or had anything to do with his detention; it was not plausible that neither he nor his father would attempt to identify those involved
·the Tribunal was not satisfied with the applicant’s confusing accounts of his detentions
·the Tribunal was not satisfied with the applicant’s account as to why anonymous people needed to detain him when it could have been done officially and legally on the ground that the business was alleged to have been infringing embargo regulations
·the applicant was able to leave Sri Lanka on his own passport, and this was strong evidence that he was not regarded as connected with the LTTE or wanted for any other reason.
The fourth dot point is directed to the applicant’s claim that since has was the manager of the business at the time of the detentions, it was to be expected that those with a grievance against the business would be interested in him and not the owners. The Tribunal set out the essential parts of the applicant’s account of the business, concluding with the stage at which the father handed over the running of the business to him. It then described the applicant’s account of the thugs’ visit to the business in February 1995. It recorded that the Tribunal member put to him that it seemed strange that the applicant would be the thugs’ target rather than those who had control of the business. The applicant’s response was that since he prepared most of the documents, the thugs probably knew he was the one who was most in touch with the customers. It is clear that the Tribunal did not accept the applicant’s explanation as to why he was detained and his father and uncle were not. It said:
“The Tribunal did not find his explanations for the failure of the authorities to question the business owners to be satisfactory. It found particularly unconvincing the account of ‘thugs’, perhaps belonging to one of the government ministers, targeting him at a time when his uncle and his father were in the shop. It was his father who had been a known supporter of the UNP ….”
Later the Tribunal repeated that it was not satisfied with the applicant’s explanations as to why he and not his father and uncle would be the target for questioning. There is thus no substance in the contention that the Tribunal failed to set out its reasons for decision on the matter the subject of the Particulars. It recorded the applicant’s claim that the thugs were interested in him, and not in his father or uncle as owners of the business, because the father had transferred its management to him, but did not accept that that was the explanation for his being detained and questioned rather than his father and uncle. There was no failure to comply with s 430(1)(b).
Section 430(1)(c) obliges the Tribunal to set out its findings on any material questions of fact. In The Minister v Singh (2000) 98 FCR 469 at 482 Black CJ, Sundberg, Katz and Hely JJ said:
“The reasoning process a Tribunal adopts may require a decision on a question of fact in order to complete the logical chain the Tribunal has adopted as the basis for its decision. Failure by a Tribunal to set out its findings in relation to that fact would involve a contravention of s 430(1)(c), as the process of reasoning adopted by the Tribunal has made that fact a material fact, since the decision is dependent upon it. Conversely an applicant may propose facts as material, but if the ultimate conclusion reached by the Tribunal is not dependent upon and does not require a finding on those facts, then they will not be material questions of fact, because the decision does not turn upon them.
…
Accordingly if a decision, one way or the other, turns upon whether a particular fact does or does not exist, having regard to the process of reasoning the Tribunal has employed as the basis for its decision, then the fact is a material one. But a requirement to set out findings on material questions of fact, and refer to the material on which the findings are based, is not to be translated into a requirement that all pieces of conflicting evidence relating to a material fact be dealt with: see Durairajasingham at 416 [65] and 417 [67].”
It was submitted for the applicant that the Tribunal’s focus upon the ownership/management issue either made the issue a material one or was indicative of its materiality, so that the Tribunal was required to make a finding about it. I do not accept the submission. The question of fact upon which the Tribunal was required to make a finding was whether or not the applicant was detained for questioning about the oversupply of coconut oil to the Tamil areas. This was the fact upon the existence of which the Tribunal’s decision turned. The Tribunal thought it reasonable that if anyone was going to be detained and questioned it would be the owners of the business rather than the applicant. For that reason the Tribunal decided that the applicant’s story was not credible. The applicant’s evidence that because he prepared most of the documents and would thus be thought to have better connections with the customers than the owners, so that he was more likely to be taken into custody, was merely evidence in support of his version of the material fact in question. It was not a material fact in itself. However, even if this piece of evidence were a material fact, there was no failure to comply with s 430(1)(c). The Tribunal dealt with and rejected the applicant’s claim that it was because he was managing the business that he and not his father and uncle were detained and questioned. I refer to what I have said in par 13.
The application must be dismissed.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg. Associate:
Dated: 27 October 2000
Counsel for the Applicant: J Gibson Solicitors for the Applicant: Gandhi Associates Counsel for the Respondent: P R D Gray Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 23 October 2000 Date of Judgment: 27 October 2000
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