Mihindukulusuriya v Minister for Immigration & Multicultural Affairs [2000] FCA 1526

FEDERAL COURT OF AUSTRALIA

Mihindukulusuriya v Minister for Immigration & Multicultural Affairs [2000] FCA 1526 PATABENDIGE SHAVINDRA SRINATH FERNANDO MIHINDUKULUSURIYA v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V 208 OF 1999 SUNDBERG J 27 OCTOBER 2000 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 208 OF 1999

BETWEEN: PATABENDIGE SHAVINDRA SRINATH FERNANDO MIHINDUKULUSURIYA

APPLICANT

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: SUNDBERG J

DATE OF ORDER: 27 OCTOBER 2000

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the application. 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 208 OF 1999

BETWEEN: PATABENDIGE SHAVINDRA SRINATH FERNANDO MIHINDUKULUSURIYA

APPLICANT

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: SUNDBERG J

DATE: 27 OCTOBER 2000

PLACE: MELBOURNE

REASONS FOR JUDGMENT

BACKGROUND 1 The applicant is a 24 year old Sri Lankan man who was born in Wellawatte, in the Western Provinces of that country. He arrived in Australia on a student visa on 29 May 1996, and lodged an application for a protection visa on 8 November 1996. The applicant claimed to have left Sri Lanka because he feared persecution because of his religion, and because of political beliefs it was perceived he held. His application was refused by the Minister's delegate. On review, the decision was affirmed by the Refugee Review Tribunal ("the Tribunal"). The applicant has applied to the Court for a review of the Tribunal's decision.

EVIDENCE BEFORE THE TRIBUNAL: 2 The applicant is a Roman Catholic of Sinhalese ethnicity. He claimed his father and his uncle, a Tamil, owned a business that sold coconut oil. Coconut oil is used for cooking and in temple offerings. The business supplied it in bulk to Tamil areas where the uncle had contacts. His father was the silent partner in the business. The father was a strong supporter of the United National Party (UNP), which unsuccessfully contested the August 1994 Sri Lankan elections. The applicant's father became depressed as a result of this loss, and ceased to take an active role in the family business. As a result, the applicant began to work in the business, under his uncle's supervision. He began in the business by visiting areas to deliver the oil, but later took on a management role. 3 The applicant claimed that his family decorated the business premises to celebrate the Pope's visit in January 1995, and this provoked an angry response from the Buddhist population in his village. It was alleged that the local Buddhist monks made threats against the family and told them not to hold a large function. The applicant's father went to the police to complain about this, but nothing was done. The decorations were not taken down, but no damage was done to the business. 4 In the early part of 1995 there was a ceasefire in the war between the Government forces and those of the Liberation Tigers of Tamil Eelam (LTTE). However the ceasefire collapsed, and the conflict resumed in around April 1995. The new government had imposed an embargo on the supply of goods to Tamil areas, though this were not strictly enforced during the ceasefire. On occasion the business exceeded the restrictions that were placed on the supply of goods. Upon the resumption of hostilities, the business was required to pay out contracts and supply oil on condition that it not be distributed to the embargoed areas. 5 The applicant claimed his name was on the documents that evidenced that the embargo limits had been exceeded. In around February 1995 he was taken to Udappu for questioning by a group of unidentified individuals who may have been aligned with one of the Ministers but who were not acting in an official capacity. The applicant described them as "thugs". The group entered the business' storage depot where the applicant was working. They did not go into the shop area, where the applicant's father and uncle were, but instead took the applicant away to look for the business' driver, who was a Tamil. The driver and other Tamils often parked outside the shop at night to sleep. As a result, said the applicant, the authorities thought the business had an association with the Tamil forces. The applicant was questioned for four or five days, and then released. Allegations were made against him that he had connections with the LTTE. His father succeeded in having him released. Upon his release he was told to report to his "headquarters" in Rome. He was made to understand that his incarceration was at the instigation of the Buddhist monks.