Kumara v Minister for Immigration & Multicultural Affairs [1999] FCA 54 (2 February 1999)

Last Updated: 10 February 1999

CATEGORY: NO QUESTION OF PRINCIPLE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 270 of 1998

Kumara v Minister for Immigration & Multicultural Affairs [1999] FCA 54

BETWEEN:	POTHUWILA PRAGNASEELA KEERTHI KUMARA Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	HEEREY J
DATE:	2 FEBRUARY 1999
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 This is an application for review of a decision of the Refugee Review Tribunal given on 28 May 1998. I shall incorporate by reference the reasons of the Tribunal, which sufficiently set out the factual background.

2 In my opinion this case has to be viewed against the basic finding of the Tribunal that by the time at which the Tribunal had to consider the applicant's refugee status he had relocated from the east of Sri Lanka to Colombo. Although this finding was attacked it was, in my opinion, strongly supported by the evidence. That evidence included the fact that the applicant's wife and two children resided in Colombo. He had had accommodation there from 1990. He was on the electoral role. He was renting two houses there. He had moved there, on his own account, in January 1995. He had been employed there from June 1995. He no longer operated his business in the eastern town of Pottuvil and was no longer travelling to the east of the country.

3 Against that background it would be necessary to consider whether the applicant, living in Colombo, would have a well-founded fear of persecution either from the LTTE or the governmental authorities.

4 As to the LTTE, the Tribunal made a factual finding that it did not accept that the LTTE had sought out the applicant in Colombo or had any interest in him. This conclusion was a finding of fact which was open on the evidence. It seems inherently rational, as even on the applicant's account there is nothing which he had done to the LTTE which would warrant them pursuing him in Colombo.

5 As to the governmental authorities, the Tribunal made a finding of fact that it did not accept the applicant's account that he had been detained for one day after a bomb blast.

6 The Tribunal pointed out that the applicant was a Sinhalese, who constitute the majority of the population in Sri Lanka. The information from the Department of Foreign Affairs and Trade was that there were no recent plausible reports of Sinhalese suspected of sympathising with the LTTE. Again, this seems inherently likely as the LTTE are struggling against Sinhalese control.

7 There was a complaint about the failure of the Tribunal to make further inquiries as to the documents which related to the alleged incidents when the applicant was detained by the military. These occurred when he was living in the east of the country. His case was that he was alleged to have been carrying prohibited goods which were related to possible terrorist activities.

8 As I said in the course of argument, I find the Tribunal's reasons a little hard to follow on this. It is not clear to me whether the Tribunal is saying that these detentions never happened or whether the account that the applicant gave of being unaware of the goods in his vehicle was untrue. If the latter was the case, it would seem to follow that he had in fact been detained.

9 The applicant apparently produced two documents, each one relating to an occasion of these alleged detentions. The Tribunal arranged for one of those statements to be examined by the document examination unit. It is not clear whether it was the document dated 15 May 1996 or the one dated 23 May 1996.

10 According to the Tribunal, the unit stated that:

"police documentation is generally prepared in Sinhala, not English. It stated that it bears a simple wet seal and has a 10 rupee postage stamp attached to it."

11 Unfortunately the Court Book does not contain a copy of either of these documents. Also it is not clear whether or not the Tribunal is making a finding that the document referred to was a forgery. Counsel for the respondent argues that implicitly such a finding was made. However, serious allegations like forgery and fraud ought to be the subject of clear and explicit findings. It does seem to me desirable, when the authenticity of documents play an important part in the reasoning of the Tribunal, that copies of the document be included in the Court Book and that clear findings be made.

12 In any event, I do not think the question of those two military detentions is critical to the Tribunal's decision given that the applicant is, as the Tribunal found, no longer residing in or travelling to the east of the country.

13 I do not accept the contention that the Tribunal failed to apply the "real chance" test. The Tribunal set out at pages 2 to 3 of its reasons a concise and accurate summary of the relevant law as laid down by the High Court and this Court. Read as a whole there is nothing in the reasons to suggest that it did not apply those tests in considering what the future would hold for the applicant.

14 I might add two matters. In relation to the aspect of protection of the LTTE, the material before the Tribunal included the delegate's decision which cited a statement by the United Nations High Commission of Refugees in January 1996 as follows:

"it may be presumed persons claiming problems with LTTE may avail themselves of the protection of the Government outside the LTTE-controlled area."

15 Secondly, counsel for the applicant referred to evidence given to the Tribunal by Felicity Rousseaux, a counsellor/advocate at the Victorian Foundation for Survivors of Torture Inc. Her report stated that the applicant presented:

"as being depressed and anxious, experiencing sleep disturbances, intrusive thoughts, hallucinations, memory loss, inability to imagine a positive future, suicidal ideation and grief."

16 It is not clear whether Ms Rousseaux has any medical or psychological qualifications. In any event, the symptoms that she had observed are of themselves not necessarily indicative of the fear of persecution for a convention reason. I do not see any error of law in the way the Tribunal dealt with this aspect.

17 The application will be dismissed with costs, including reserved costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate:

Dated: 2 February 1999

Counsel for the Applicant:	Mr R Deckker
Solicitor for the Applicant:	Wimal Jayakody
Counsel for the Respondent:	Mr D Murphy
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	2 February 1999
Date of Judgment:	2 February 1999