WAET v Minister for Immigration & Multicultural Affairs [2002] FCA 583

FEDERAL COURT OF AUSTRALIA

WAET v Minister for Immigration & Multicultural Affairs [2002] FCA 583

MIGRATION - refugee - Refugee Review Tribunal - Tribunal finding that relocation was safe and viable option - applicant's submissions on relocation contested Tribunal's conclusions of fact - application dismissed

WAET v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W50 OF 2002

FRENCH J

2 MAY 2002

PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W50 OF 2002

BETWEEN: WAET

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: FRENCH J

DATE OF ORDER: 2 MAY 2002

WHERE MADE: PERTH

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

WESTERN AUSTRALIA DISTRICT W50 OF 2002

REGISTRY

BETWEEN: WAET

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: FRENCH J

DATE: 2 MAY 2002

PLACE: PERTH

REASONS FOR JUDGMENT 1 The applicant arrived in Australia on 17 April 2001. He is a citizen of Sri Lanka. He arrived in this country by boat and without any authority. He lodged an application for a protection visa on 23 May 2001. That application was refused on 8 June 2001. The applicant applied to the Refugee Review Tribunal ("the Tribunal") for a review of that decision on 15 June. On 31 January 2002, the Tribunal affirmed the decision not to grant him a protection visa. 2 The Tribunal found that the applicant had been consistent in his claims. In summary, he is a Muslim born at Marawila in Sri Lanka in 1978. His parents and two brothers still live there. He was campaign manager for an SLFP candidate from his village for an election which was held on 10 October 2000. The applicant and his team of six people carried the campaign into the opposition's area and fought a strong campaign. All of them were well known to the opposition UNP. They canvassed for votes and put up posters for the campaign. They erected platforms for meetings. They were threatened by opposition members who said, "You can do this, but when we win we will show you our strength". The applicant was a scrutineer on voting day. He brought voting irregularities on the part of the UNP to the attention of the police. In the end, the UNP candidate won the election in their electorate. The successful candidate's supporters drove in groups around the electorate and set about destroying the home of the applicant's family. He was absent at the time but his father was assaulted. People in the UNP group said that, because the applicant had supported the SLFP candidate, they would kill him. The applicant went into hiding and stayed in hiding for about five months. He stayed in the jungle near his home for two days, coming home late at night for food and information. Then he went to the town of Anuradhapura where a friend lived and stayed there for three months. He then spent another two months with a friend in Horapola. 3 He said his parents told him that the UNP candidate supporters were still looking for him after five months. This was in March 2001. They told him he must leave Sri Lanka. The day after they told him this his father took him to the home of a relative in Negombo. On the evening of 25 March 2001, the applicant joined others who were taken from one boat to another, then went to Australia. 4 The applicant says that the UNP mob who attacked his family home removed a photograph of him from the home. He fears this photograph will be given to underworld people who will, for money, seek him out and kill him. The underworld has tentacles all over Sri Lanka and they may well find him and kill him. If he were to return to his home village the successful candidate's sympathisers and supporters would kill him. He said he could not go to the police and complain. He could not get protection from them. He said the police are in with the UNP gang and would not accept what he says. If he were to go and complain they would hand him over to the UNP. 5 After considering the applicant's submissions and evidence and independent country information, the Tribunal made its findings. The claims that I have just summarised were accepted by the Tribunal. It was left in little doubt that the applicant is genuinely fearful that underworld killers hired by the UNP and armed with a photograph taken from his family home will kill him upon his return to Sri Lanka. While his claims that he will be murdered by the underworld might seem far-fetched, there was reliable, independent information which confirmed that political assassinations have been quite common in Sri Lanka. There was some independent evidence that political payback killings in the general neighbourhood of the applicant's home have occurred. The Tribunal could not confidently find that he would obtain effective protection from the local police or authorities. The Tribunal concluded that there was a real chance that if the applicant returned to his home village he might suffer death or serious injury at the hands of local UNP party members. It was satisfied that his fears of persecution in the district of Puttalam in north-western Sri Lanka as a result of his political views were well-founded. 6 The Tribunal then considered whether or not the applicant could relocate safely to another part of Sri Lanka. It was necessary to consider whether relocation was reasonable in all the circumstances of the case. This must be considered in a practical and commonsense way. Careful consideration should be given to the practical realities of the situation as they affected the applicant. 7 The Tribunal was satisfied that the applicant could relocate to another part of Sri Lanka. It said his fears were very localised. All of his difficulties had occurred in one small village in the Puttalam district of the north-west province. In Colombo, about eight per cent of the population is Muslim and there are over forty one per cent in Amparai province. The Tribunal considered that the applicant could live safely in other parts of Sri Lanka such as the Muslim-majority district of Ampurai. It said this bearing in mind that it was satisfied that there is no official or officially tolerated persecution of Muslims in Sri Lanka. 8 The applicant, it said, does not have a high political profile across Sri Lanka and would not be of any interest to the UNP leadership. The applicant did not claim at any time to have a high profile in the SLFP. The Tribunal accepted independent country evidence that Muslims would be safe in Colombo. It was of the view that the applicant could live safely in larger Muslim communities in the east or south-east. It did not accept that fourteen months after the UNP had raided his house they would bother to waste money pursuing him all over Sri Lanka and it was not suggested that the central government would countenance violence against members of one of its coalition partners. The Tribunal was satisfied the government would afford protection to the applicant outside the Kukalim district in the west of Sri Lanka. Although the applicant might be at some risk if he were to become active in politics again, he had said in his evidence he would never become involved in politics again if he returned to Sri Lanka. 9 The Tribunal did not accept the evidence of the applicant about his brother's fears in Colombo. His brother has lived there for two years and nothing has happened to him. The Tribunal did not believe that the brother does not leave the university campus there. 10 The applicant has completed his secondary education and has worked as a sales representative and a cash collector. He shares a common language with other Muslims. The Tribunal was satisfied that he has the qualifications and experience to get employment anywhere in Sri Lanka. He had lived apart from his family for extended periods. For these reasons the Tribunal was satisfied that relocation to Colombo or to the east or south-east of Sri Lanka was a viable and safe option for the applicant. 11 In support of his application for review of the Tribunal decision, the applicant wrote a letter to the Court. The only part of the letter that is relevant for present purposes is that dealing with the question of relocation. In his letter he said that if he were to follow the views of the Tribunal member, it would be fatal advice. Sri Lanka stretches 250 kilometres from south to north, and nearly 150 kilometres from west to east. If he were to stay anywhere in the country, even in a Muslim majority location, he could be found. People from the UNP, are spreading into every part of Sri Lanka. He said a lot of Muslims are supporters of the UNP. Sri Lanka is not big like Australia. 12 His submissions on the question of relocation really contested the Tribunal's conclusions of fact. They did not show any basis upon which this Court has power to interfere with the Tribunal's decision and having read the Tribunal's reason myself, I cannot see any such basis for myself. The application must be dismissed and the applicant is to pay the Minister's costs of the application. 13 These reasons were delivered orally following the hearing. They were delivered via video link in the hearing of the applicant and interpreted to him by the interpreter present in Court. The printed version now published embodies stylistic and grammatical changes. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French J.