Perera v Minister for Immigration and Multicultural Affairs

[2000] FCA 1750

FEDERAL COURT OF AUSTRALIA

Perera v Minister for Immigration & Multicultural Affairs [2000] FCA 1750

MANDAWALA KANKANAMAGE PERERA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 689 OF 2000

SUNDBERG, EMMETT and STONE JJ
1 DECEMBER 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 689 OF 2000

BETWEEN:	MANDAWALA KANKANAMAGE PERERA APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGES:	SUNDBERG, EMMETT and STONE JJ
DATE OF ORDER:	1 DECEMBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent’s costs of the appeal, to be taxed in default of agreement.

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 689 OF 2000

BETWEEN:	MANDAWALA KANKANAMAGE PERERA APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGES:	SUNDBERG, EMMETT and STONE JJ
DATE:	1 DECEMBER 2000
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

BACKGROUND

1. The appellant is a 52 year old Sri Lankan man of Sinhalese extraction who arrived in Australia on 20 October 1997.  He lodged an application for a protection visa on 14 January 1998.  The application was rejected by a delegate of the respondent.  The appellant applied to the Refugee Review Tribunal for review of the delegate’s decision.  The application was dismissed, and an application for review of the Tribunal’s decision was dismissed by Lindgren J.

   APPELLANT’S CLAIMS

2. The appellant had been a staff sergeant in the Sri Lankan army.  He retired from the army in 1986.  While posted to Jaffna in 1976 he had renewed acquaintance with Sivakumar Kandiah, a Tamil businessman whom he had known at school.  They again became close friends.  From 1976 to 1986 the appellant used to meet Kandiah at the latter’s home in Jaffna, where the appellant was posted for about three months each year.  After the appellant retired from the army, Kandiah visited him in Colombo.  In a statement furnished to the Department of Immigration and Multicultural Affairs the appellant said that in 1976 he “came to know through him [Kandiah] that he was a member of the Tamil United Liberation Front (TULF)”.  The TULF is a moderate, non‑militant Tamil political organisation that is regarded with hostility by the violent Liberation Tigers of Tamil Eilan (LTTE), and suffers much at its hands.  When Kandiah visited the appellant in Colombo, the appellant used to accompany him to help him avoid checking at Army barriers.  He did this right up to his departure for Australia in October 1997.

3. After arriving in Australia the appellant telephoned his wife.  She told him the police and army had come and “severely questioned” her about the appellant’s association with Kandiah.  She said the army had alleged that the appellant was engaged in giving information to the LTTE through Kandiah who, allegedly, was an LTTE member pretending to be a TULF member.  She said Kandiah had been arrested since the appellant’s departure.  In later telephone calls to his wife she told him the army had returned and again “severely questioned” her.  In April 1999 she informed him that a warrant had recently been issued for his arrest.

   TRIBUNAL’S DECISION

4. The Tribunal recorded that the appellant claimed he had been “imputed with a political opinion of supporting the LTTE”.  The Tribunal noted Country Information Reports that there were no plausible reports of Sinhalese being suspected of sympathising with the LTTE, and that apart from a Sinhalese collaborating with the LTTE for illegal gain, it was “utterly implausible” that a Sinhalese would support the LTTE.  The Tribunal noted the appellant’s claim that his friendship with Kandiah was the reason he had been imputed with a political opinion, and said that this claim was undermined by the fact that he had encountered no difficulty in Sri Lanka during his 21 year close association with Kandiah.

5. The Tribunal noted the appellant’s claim that Kandiah had been arrested in October 1997.  It observed that if the authorities genuinely believed that the appellant had any affiliation with the LTTE, it was implausible that they would wait 18 months (April 1999) before issuing a warrant for his arrest.  The Tribunal was of the view that the appellant had invented the claim to have been arrested as a means of enhancing his case for refugee status.  The Tribunal said the appellant had “produced not a modicum of evidence” to support his claim that his wife had been visited by the police.  It did not accept that the wife had been “severely interrogated”, and noted that she had continued to reside in the same place notwithstanding the harassment.  The Tribunal found that the appellant’s claims in regard to his wife were unsupported allegations, and it did not accept them “in light of the Tribunal’s grave adverse credibility findings” in relation to his other claims.  The Tribunal concluded that it was

   “not satisfied that the applicant has been credible or truthful in his claims to the Tribunal.  The Tribunal pointed out to the applicant its basic problems with his claim that as a Sinhalese he has been imputed with an LTTE profile.  Though the applicant made attempts to address this concern, the Tribunal cannot be satisfied that he has done so in any meaningful manner.  The Tribunal is not satisfied that the applicant’s friend Kandiah has been arrested on LTTE‑related charges, and the Tribunal finds itself to be in a state of positive disbelief in regard to his claims that the applicant has been imputed with an LTTE profile.  It is not satisfied that the applicant’s wife has been visited by the police nor is it satisfied that she has been interrogated or detained.  The Tribunal finds the applicant’s claim that an arrest warrant has been issued against him to be self‑serving and lacking credibility.”

   Given these significant adverse findings on credibility, the Tribunal was not satisfied that there was a real chance that the appellant would be persecuted for a Convention reason were he to return to Sri Lanka in the near future, and was not satisfied that his fear of persecution was well founded.

   BEFORE THE PRIMARY JUDGE

6. Before Lindgren J the appellant claimed that the Tribunal had made three errors of law.  The first was that it had wrongly treated him as contending that Kandiah was in fact a member of the TULF, whereas the contention was only that Kandiah claimed he was a member.  This was said to be a failure to address the case made by the appellant.  The second error was that the Tribunal wrongly treated the appellant as contending that Sinhalese might in fact have supported the LTTE, whereas he was contending only that Sinhalese might be suspected by the authorities of doing so.  This again was said to be a failure to deal with the case presented by the appellant.  The third error was in treating the appellant’s own testimony about his telephone conversation with his wife as if it were not “evidence”.  Only the first of the alleged errors was pursued on the appeal, and we need not record the way in which the primary judge dealt with the other alleged errors.

7. According to the appellant, the significance of the distinction between an actual and a claimed membership of TULF was that if Kandiah was in truth a member or supporter of the LTTE masquerading as a member of the TULF, then the appellant would have been deceived as much as anyone else.  If the Tribunal had recognised this fact, it would have appreciated that there was no inconsistency between his claims and the evidence before it.

8. After noting that in his written statement the appellant said he came to know “through Kandiah” that he was a member of the TULF, and that in his oral evidence he said it was “according to the information that [Kandiah] gave [him]” that Kandiah was a member of the TULF, the primary judge said:

   “How the statement is to be understood depends on the terms of the statement understood against its background and in its context.  In my view, Mr Perera was inviting the RRT to proceed on the basis that Kandiah was indeed a long time member and supporter of the TULF.”

   His Honour noted the long‑standing and close friendship between the two men, that they spent countless hours in each other’s company and in conversation, and in these circumstances concluded that

   “There was every reason for the RRT to understand that Mr Perera’s claim was that Kandiah was indeed a member and supporter of the TULF and there was nothing to suggest that his claim was otherwise.  In the passage in his written statement referred to earlier, Mr Perera puts it forward as a fact that Kandiah was a member of the TULF, albeit a fact that Mr Perera had come to know ‘through’ Kandiah.”

   His Honour concluded that the claim that the appellant advanced for consideration by the Tribunal was that Kandiah was indeed a member and supporter of the TULF.

   CONCLUSION

9. In his written statement the appellant said:

   “At the time I came to know through him that he was a member of the Tamil United Liberation Front (TULF) and when he wanted to travel to Colombo I used to accompany him in order to assist him to avoid checking at the Army barriers by accompanying me.  His trips were mainly to meetings conducted in several places in Colombo.”

   In context, the phrase “I came to know through him” is merely a statement as to the source of the appellant’s knowledge of Kandiah’s membership of the TULF.  The passage as a whole indicates that the appellant was intending to convey to the reader that Kandiah was in fact a member of the TULF.  Thus it was his membership that put him at risk at Army barriers, and the appellant assisted him to bypass them.  Similarly, his meetings in Colombo were TULF meetings.  The appellant’s oral evidence is to the same effect.  The Tribunal member asked him why Kandiah used to come to Colombo.  He replied that “According to the information that he gave me he is a member of the TULF”.  The member then asked whether Kandiah came to Colombo because he was a member of the TULF, and he replied that that was the reason.  In these circumstances, it was open to the Tribunal to say that the appellant gave evidence that “Kandiah was travelling to Colombo because of his involvement in TULF” and that “Kandiah was travelling to Colombo for TULF business”.  It is to be remembered that the Tribunal had the advantage of hearing the oral evidence.  We agree with the primary judge that the appellant was inviting the Tribunal to proceed on the basis that Kandiah was a member of the TULF.  That was the claim he put to the Tribunal, and that was the claim with which the Tribunal dealt.

   ORDER

10. The appeal must be dismissed with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg, the Honourable Justice Emmett and the Honourable Justice Stone.

Associate:

Dated:            1 December 2000

Counsel for the Appellant:	LJ Karp
Solicitors for the Appellant:	McDonells
Counsel for the Respondent:	D Jordan
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	1 December 2000
Date of Judgment:	1 December 2000