Ratnayake, Sudharma Laksman Bandara v Minister for Immigration & Multicultural Affairs [1998] FCA 1141

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 306 of 1996

BETWEEN: SUDHARMA LAKSMAN BANDARA RATNAYAKE

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: RYAN J

DATE OF ORDER: 14 september 1998

WHERE MADE: MELBOURNE

MINUTES OF ORDER

THE COURT ORDERS: 1. That the application be dismissed. 2. That the applicant pay the respondent's costs of the application, such costs to be taxed in default of agreement. Note: Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 306 of 1996

BETWEEN: SUDHARMA LAKSMAN BANDARA RATNAYAKE

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: RYAN J

DATE: 14 september 1998

PLACE: MELBOURNE

REASONS FOR JUDGMENT This application was made to the Court pursuant to s 475(1)(b) and s 476(1) of the Migration Act 1958 ("the Act"). The applicant seeks judicial review of a decision of the Refugee Review Tribunal ("the RRT") which affirmed a decision by a delegate of the respondent not to grant a protection visa to the applicant. The applicant, a citizen of the Republic of Sri Lanka, arrived in Australia on 7 October 1994. On arrival he was granted a visitor entry permit and on 7 November 1994 he filed an application pursuant to s 36 of the Act for a protection visa. On 17 July 1995 a delegate of the respondent refused to grant a protection visa to the applicant. On 7 May 1996, the RRT made a decision affirming the decision not to grant a protection visa to the applicant, and published its reasons for decision. It is this decision of the RRT which the applicant seeks to review.

THE APPLICANT'S CLAIMS AND EVIDENCE The applicant was admitted to practise as a lawyer in Sri Lanka in 1988. He practised principally in the field of criminal law and also acted in a small number of human rights cases. Until mid-1993 most of the applicant's clients were Sinhalese. However, after that time, following the introduction of anti-terrorism legislation in Sri Lanka, the applicant, who had always sympathised with Tamils, began to act increasingly for Tamil youths suspected of being involved with or supporters of the Liberation Tigers of Tamil Eelam ("the LTTE"). The applicant claimed that, against advice from colleagues and others, he continued his work with members of the Tamil community and built up a good practice. He further claimed that, on 10 August 1994, he gave shelter to two Tamil youths, one of whom was, at the time, his client. The applicant alleged that on the next evening he was taken from his house by two plainclothes police to a destination in Colombo where he was interrogated for approximately three hours about his professional involvement with Tamils and about having given shelter to suspected LTTE supporters. The applicant claimed that, during this interrogation, he had his beard pulled, he had been hit on the side of the head with a book and had been burned on the hand with a cigarette for which he later required medical attention. According to the applicant, he did not inform anyone except his wife of this incident because he feared police reprisals. After the alleged incident with the police, the applicant claimed that, although he continued to represent Tamils in cases pending, he did not accept any new retainers for Tamil clients. He also asserted that his car windscreen and head lights were damaged and that his house was stoned at night although he did not know who had been responsible. He further alleged that, after he had arrived in Australia, the police had visited his house in Sri Lanka on a number of occasions and had taken documents. The applicant claimed that he would be killed upon his return to Sri Lanka. At the reconvened hearing before the RRT on 28 February 1996, the applicant made a long statement detailing the current situation in Sri Lanka. In particular, he referred to an incident after a recent bomb blast in Colombo, in which a policeman allegedly stated to the applicant's wife "people freed by your husband did this". The applicant claimed that the situation for lawyers in Sri Lanka had not changed since 1991 when a number of lawyers had been killed for acting in human rights cases. Accordingly, he maintained that it was too dangerous for him to return to Sri Lanka and that he had a well-founded fear of persecution for a Convention reason and should therefore be granted a protection visa.