Mookiah v Minister for Immigration & Multicultural Affairs [1999] FCA 720

FEDERAL COURT OF AUSTRALIA

Mookiah v Minister for Immigration & Multicultural Affairs [1999] FCA 720 MIGRATION – appeal from refusal of RRT to allow application for asylum – Hindu Tamil from Sri Lanka who is sympathetic to the Tamil Tigers – fear of persecution on the basis of imputed political opinion – whether the Tribunal erred in law by rejecting a number of the applicant's principal factual allegations on ground of implausibility without supporting evidence.

WORDS AND PHRASES – "fear of persecution" Migration Act 1958 (Cth)

Randhawa v Minister for Immigration and Ethnic Affairs [1992] 52 FCR 437 followed

KAMALANATHAN MOOKIAH V MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS NG 230 OF 1998

THE HON JUSTICE MARCUS EINFELD AO SYDNEY 31 MAY 1999

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 230 OF 1998

BETWEEN: KAMALANATHAN MOOKIAH

Applicant

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

JUDGE: THE HON JUSTICE MARCUS EINFELD AO

DATE OF ORDER: 31 MAY 1999

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. the decision of the Tribunal be set aside 2. the matter be remitted for hearing to a differently constituted Tribunal 3. the respondent pay the applicant's costs Note: Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 230 OF 1998

BETWEEN: KAMALANATHAN MOOKIAH

Applicant

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

JUDGE: THE HON JUSTICE MARCUS EINFELD AO

DATE: 31 MAY 1999

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant is a Hindu Tamil from Sri Lanka in his late 20s who arrived in Australia on either 25 June or 26 July 1995. An application for asylum was refused by the Minister's delegate on 23 October 1996 and the refusal was affirmed by the Refugee Review Tribunal on 25 February 1998. He now appeals the refusal to this Court. 2 The applicant's principal claim is that as a Tamil sympathetic to the Tamil Tigers, he is in fear of persecution from Government forces and other Sinhalese, based on a number of past acts of harassment and discrimination including arrests, detention and torture, and injury in a bombing raid by the Sri Lankan air force. His persecution was and would now be on the basis of an imputed political opinion being his support for the Tigers. 3 The case was determined by the Tribunal on the basis of a rejection of a number of the applicant's principal factual allegations. To set the background to the applicant's challenge to this rejection, it is necessary to summarise a number of these allegations as made to the Tribunal: 1. The applicant claimed that he and his family have been victimised as Tamils for about 15 years. His parents live in Jaffna. Of his 8 brothers and sisters, 6 live in Jaffna, one in Colombo and one in Australia. His passport, issued in 1993, gives his address as Colombo.