Don v Minister for Immigration & Multicultural Affairs [2000] FCA 572

FEDERAL COURT OF AUSTRALIA

Don v Minister for Immigration & Multicultural Affairs [2000] FCA 572

PRAMUDITHA SUDARSHANA HALPITA PATHIRAGE DON v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1196 of 1999

MADGWICK J 20 APRIL 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1196 of 1999

BETWEEN: PRAMUDITHA SUDARSHANA HALPITA PATHIRAGE DON

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: MADGWICK J

DATE OF ORDER: 20 APRIL 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant is to pay the respondent's costs of the proceedings.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1196 of 1999

BETWEEN: PRAMUDITHA SUDARSHANA HALPITA PATHIRAGE DON

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: MADGWICK J

DATE: 20 APRIL 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT (revised from transcript) HIS HONOUR: 1 This is an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") given on 27 July 1999. The effect of that decision was not to interfere with the decision of a delegate of the respondent Minister against granting the applicant a protection visa. The Tribunal believed that the applicant was not a refugee within the meaning of the Convention Relating to the Status of Refugees 1951,referred to in s 36(2) of the Migration Act 1958 (Cth) ("the Act"). 2 The grounds of the application owe more to an outmoded method of pleading common law cases than to any serious effort at elucidation of what errors of law, if any, were alleged on the part of the Tribunal. The applicant is not legally represented and he is unable to point to any error of law. 3 Not without some misgivings, the Tribunal accepted the substance of the applicant's factual claims. The applicant is a Sri Lankan national. At a time when the JVP Party was a proscribed and insurrectionary organisation he became involved in assisting that party. In particular, as a driver, he carried messages for the JVP in 1990, and he was involved in the transportation of part of the proceeds of a payroll robbery organised by the JVP in 1992. In December 1992 the applicant was detained by the police, found to be carrying a message on behalf of the JVP, and interrogated and tortured, only narrowly escaping death. He thereupon spent three years in hiding before coming to Australia in December 1995. 4 However, in 1994 the JVP ceased to be a proscribed organisation and there was no evidence before the Tribunal that former collaborators with the JVP faced harm because of such collaboration. As is well known, some former JVP operatives now hold significant positions in all walks of life in Sri Lanka including the government. 5 The Tribunal concluded that there had been a change of circumstances in Sri Lanka, such that there was no real chance that the applicant would face any harm for reasons of his political opinion or imputed political opinion stemming from his involvement with the JVP. The Tribunal accepted that the applicant might still be prosecuted for his involvement in the payroll robbery, but took the view that such prosecution would not, as the Tribunal put it, "without more" constitute Convention persecution. This was because prosecution under a law of general application such as that prohibiting robbery does not ordinarily give rise to a claim of such persecution. In particular there was nothing to indicate that the applicant would be treated worse than any other person charged with such an offence merely because his motivation and participation in the robbery was one of political opinion. 6 The Tribunal member referred in his succinct reasons to a number of background documents which apparently supported this position. He raised all his concerns with the applicant and it seems to me that, as far as I can judge, the Tribunal member carried out his duties properly and in a way that evinced no misunderstanding of the law nor any misapplication or disregard of procedures mandated by the Act. In these circumstances, it seems to me that the application for review must fail. 7 Accordingly the application will be dismissed and the applicant ordered to pay the respondent's costs of the proceedings. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.