Applicant MK v Minister for Immigration & Multicultural Affairs [2000] FCA 881

FEDERAL COURT OF AUSTRALIA

Applicant MK v Minister for Immigration & Multicultural Affairs

[2000] FCA 881

MIGRATION – application for protection visa – challenge to Tribunal's findings of fact not reviewable under Part 8 of Migration Act 1958 (Cth) – surmise and conjecture as to possible risk not sufficient in the circumstances to give rise to "well-founded fear of persecution".

APPLICANT MK & APPLICANT KK v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

V 745 of 1999

WEINBERG J

29 JUNE 2000 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 745 OF 1999

BETWEEN: APPLICANT MK

FIRST APPLICANT

APPLICANT KK

SECOND APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: WEINBERG J

DATE OF ORDER: 29 June 2000

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicants pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 745 OF 1999

BETWEEN: APPLICANT MK

FIRST APPLICANT

APPLICANT KK

SECOND APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: WEINBERG J

DATE: 29 JUNE 2000

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 This is an application under Pt 8 of the Migration Act 1958 (Cth) ("the Act") to review a decision of the Refugee Review Tribunal ("the Tribunal") made on 26 November 1999. On that date the Tribunal affirmed a decision made by a delegate of the respondent on 2 July 1997 that the first applicant, his wife, and their two children were not entitled to the grant of protection visas.

Background 2 The first applicant ("the applicant") is a Sri Lankan national of Tamil ethnicity. He arrived in Australia on 28 March 1997, having previously visited this country on a number of occasions. Together with his wife, who is the second applicant, he lodged an application for a protection visa on 16 May 1997. As noted above, that application was refused on 2 July 1997. 3 Prior to his arrival in Australia, the applicant had been employed as bank manager in Colombo. He claimed that by reason of being a Tamil he had been subjected to various forms of discrimination during his formative years. He acknowledged, however, that he had ultimately overcome many of the difficulties with which he had been confronted. 4 The applicant claimed that because he was a Tamil he had, over the years, been questioned by police on many occasions. His home had been about half a kilometre from the Sri Lankan President's residence, and was also close to a Hindu temple which he visited on an almost daily basis. He claimed that he had become friendly with a priest at the temple. That priest had originally come from Jaffna, and in 1996 moved into the temple because the house which he had occupied had been sold. The priest confided to the applicant that he had been compelled to move from Jaffna because, while there, he had provided shelter at his temple to members of the Liberation Tigers for Tamil Eelam ("LTTE"). The priest had told the applicant that he had been questioned by the authorities about his activities in Jaffna. 5 The applicant claimed that in or about June 1996 the police had made enquiries with his employer, and had checked his personal files. The applicant also said that plain clothes police had questioned his neighbours about him. 6 The applicant claimed that in late February 1997 the priest told him that two LTTE members that he had once helped in Jaffna had demanded that he again assist them in Colombo. The priest had allowed them to stay at the temple. On two occasions the priest had allowed two other boys to stay there as well. 7 The applicant said that in March 1997 the priest asked him if he could stay at the applicant's home for a week. The applicant had agreed. He had registered the priest's stay at his home with the police, as he was required to do. The applicant claimed that during the priest's stay a Tamil boy had come to the house, and asked for the priest. The applicant had told the boy that the priest was not there. The boy returned later that night. When told again by the applicant that the priest was not there the boy had produced a gun and demanded to search the premises. Eventually the boy located the priest, and took him away. 8 Subsequently the priest returned and explained to the applicant that the boy had insisted that he open the temple so that one of the boy's friends could sleep there that night. The next day the priest left the applicant's house. He never returned. Thereafter police began searching the area, and seeking information about the priest's whereabouts. Apparently the priest was suspected of having connections with the LTTE. The applicant was questioned, but beyond acknowledging that the priest was known to his family, said nothing about anyone having been given shelter at the temple, or about the incident involving the boy with the gun. 9 In around March 1997 the police searched the applicant's house. The applicant was detained overnight. He was questioned again about the priest, and about the priest's contacts. The applicant again said nothing about the boy having come to his house, or about his having been threatened by the boy at gunpoint. The police then released the applicant, having ascertained that he held a senior position with the bank, and that he was regarded as being highly respectable. Shortly thereafter the applicant left Sri Lanka for Australia.