Tennakoon v Minister for Immigration and Multicultural Affairs

[2001] FCA 1650

FEDERAL COURT OF AUSTRALIA

Tennakoon v Minister for Immigration & Multicultural Affairs [2001] FCA 1650

SURANGA INDIKA TENNAKOON v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V259 of 2001

MADGWICK J
2 NOVEMBER 2001
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY	V259 of 2001

BETWEEN:	SURANGA INDIKA TENNAKOON APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MADGWICK J
DATE OF ORDER:	2 NOVEMBER 2001
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application for an adjournment be refused.

2.The application for review be refused.

3.The applicant pay the respondent’s costs.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY	V259 of 2001

BETWEEN:	SURANGA INDIKA TENNAKOON APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MADGWICK J
DATE:	2 NOVEMBER 2001
PLACE:	MELBOURNE

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR:

1. The applicant, a citizen of Sri Lanka, arrived in Australia on 2 November 1997.  He did not lodge an application for a protection visa until over three years later, on 19 December 2000.  During that time he returned to Sri Lanka for three weeks in April 2000 to visit his ailing father. 

2. The applicant has had free legal advice arranged by the Court under the scheme much resorted to in Victoria, provided for by O 80 of the Federal Court Rules.  Despite that, the application for review to this Court remains unclarified.  The grounds of application are stated to be:

   "There is no legal representation for me on this case so I would find Legal Representation and present my Arguments on my grounds and the RRT has taken a very wrong Decision on this case.  I would like you to over turn the Decision and to relooked my Decision on the RRT." 

3. At the time of lodging his application, the applicant was detained in purported immigration detention in a state prison, and one could forgive the informality of the

   
   
   

   application.  However, orders of another judge of this Court that grounds should be stated and that submissions should be filed have not been complied with.

   Application for adjournment

4. Today the applicant sought an adjournment in order to obtain legal representation.  I might add parenthetically that he now makes no claim of illness or incapacity.  He claims that he has had more than one lawyer for his case but they have “not got back to” him.  It is in the public interest that the applicant’s claim to refugee status should be resolved as soon as possible.  The applicant has had ample time to obtain legal representation if he wished it and has had the benefit of free legal advice.  Despite having had the benefit of legal advice, he has not complied with the preparatory orders of the Court.

5. There is no sensible basis for legal criticism of the Refugee Review Tribunal’s (“the Tribunal”) decision as yet articulated, nor does any readily occur to me.  While I do not of course prejudge the applicant’s case, which he will present, the impression I have is that his case is a weak one.  It is by no means clear that if he had an adjournment he would obtain legal representation, or that, if he did, there would be any substantial chance that his position in relation to his application to the Court would be improved.  The applicant has had, in my opinion, a very reasonable opportunity to present his case.  He has been out of custody for some considerable time and I see no reason at all to delay the hearing of the matter. 

6. Accordingly, the application for an adjournment will be refused.

   Application for review

7. This is an application for judicial review of a decision of the Tribunal, which affirmed the decision of a delegate of the respondent Minister to refuse the applicant the grant of a protection (class XA) visa.  The eligibility for such a visa depends on satisfying the respondent Minister and his delegate that the applicant is a refugee within the meaning of the 1951 Convention relating to Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.

8. The applicant was, at the time of consideration of his case by the Tribunal, a 27 year old man who had lived much of his life near Colombo and then near Kandy.  He is of Singhalese ethnicity.  His father is the assistant director of the State Plantation Corporation.  He apparently studied computing for some months in Kandy and came to Australia on 2 November 1997 on a student visa to undergo further computer training.  Over three years later he lodged an application for a protection visa.

9. The applicant’s claim is that he was involved with the political organisation known as the Janatha Vimukthi Peramuna (“the JVP”).  This was a Buddhist Marxist youth group formed in 1964 which staged an abortive coup attempt in 1971 resulting in the death of at least 10,000 JVP members and the detention of another 18,000 members.  Following that coup attempt, the JVP was banned, regaining its legal status in 1977 when it eschewed violence in an attempt to establish itself as a legitimate parliamentary party.  It was, however, proscribed again in 1983 and, after the introduction of the Indian peacekeeping force into Sri Lanka, it launched a second insurrection in early 1988 which lasted until March 1990.  Again, there was much bloodshed.  As the Tribunal Member put it, there was a massive and brutal response by the government.

10. The applicant claimed he was involved in the JVP conflicts during the period of 1989 to 1991.  He claimed that in 1991 the police and military came to his house looking for him and they continued to look for him for about a year.  In 1992, his parents told him that there was a “warrant” from a court presumably for his arrest, as a result of which he went to live with his grandparents for the next five years, his father having arranged a false identity for him.  In 1996 his father arranged for him to come to Australia.

11. The applicant said that the warrant for his arrest referred to allegations of working against the government and destroying government property by throwing petrol bombs in early 1991.  He said that although he had not been involved with the JVP since 1991 and would not be involved if he returned now, he would in any event be killed.  He further submitted that he would be at risk as a returned asylum seeker and subject to exploitation.

    Consideration

12. The Tribunal Member relied on a number of matters to reject the credibility of the applicant’s claim.  Summarised these were that the applicant had only a minimal knowledge about the JVP and that the low‑level activities he says he was engaged in between 1989 and 1991 seemed improbable.  It was improbable that, in the context of the determination and thoroughness with which the campaign against the JVP was waged, the applicant would simply have been able to hide at the houses of friends and his grandfather or that the applicant would have been able to return in 1999 or 2000, whichever it was, safely to visit his sick father without being found by the authorities.  In any case, the Tribunal referred to much material which indicated that the JVP had been effectively crushed in the early 1990s and has been reborn as a legitimate political party with elected parliamentarians, so that, by inference, the applicant would be of no interest to the authorities now.

13. Dealing with the treatment of returnees, the Tribunal Member referred to the applicant having negotiated airport security without difficulty in the year 2000 and accepted the advice of Australia’s Department of Foreign Affairs and Trade that most returnees do not face difficulties.  In summary, the Tribunal concluded that there was no real chance that the applicant would face persecution for a convention reason should he now return to Sri Lanka.

14. The applicant offered no legal criticism of the Tribunal’s decision.  Understandably, he said that he is not a lawyer and is not in a position to do so.  Because of the potential importance for the applicant of a case such as this, I examined the matter to see whether any legal question raised itself.  The only shred of an argument that suggests itself is that the Tribunal Member dealt with the matter as one of credibility and as determined by “country information”, referring to a merely hypothetical situation of an ex‑JVP activist and failed asylum seeker returnee to Sri Lanka.  However, there is not, so far as I can see, the faintest substance in any theoretically possible criticism of the Tribunal on this basis.  It is often the case that ready resort by the Tribunal to disbelief of an applicant causes judicial unease.  It is enough to say that this is not the case here and there appears to have been ample material upon which the Tribunal Member could have rejected the applicant’s claims, as the Tribunal Member firmly did.  Likewise, the Tribunal Member, it seems to me, had a mass of material available to justify his broader conclusions and I think that he did consider the matter in relation to the concrete position of the applicant. 

    Disposition

15. Accordingly, it seems to me that there is no ground for review made out and the application will be dismissed.  The applicant will be ordered to pay the respondent Minister’s costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:             22 November 2001

Applicant appeared in person.
Counsel for the Respondent:	W G Gilbert
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	2 November 2001
Date of Judgment:	2 November 2001