M150 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 273

FEDERAL COURT OF AUSTRALIA

M150 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 273

M150 OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

VID 1 of 2005

RYAN J

22 MARCH 2006

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 1 of 2005

On appeal from the Federal Magistrates Court of Australia

BETWEEN: M150 OF 2002

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

JUDGE: RYAN J

DATE OF ORDER: 22 MARCH 2006

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs, to be taxed in default of agreement. 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 VID 1 of 2005

On appeal from the Federal Magistrates Court of Australia

BETWEEN: M150 OF 2002

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

JUDGE: RYAN J

DATE: 22 MARCH 2006

PLACE: MELBOURNE

REASONS FOR JUDGMENT

Introduction 1 This is an appeal from a decision of Phipps FM made on 17 December 2004 dismissing the appellant's application for prerogative relief against a decision of the Refugee Review Tribunal ("the Tribunal"). On 19 July 2002 the Tribunal decided not to grant the appellant a protection visa.

Background 2 The history of the appellant's claim for a protection visa was set out by Phipps FM in his reasons for decision at [4]–[12] as follows; '4. The applicant claimed that while he was working for S he came into contact with a Tamil by the name of K and they became good friends. K left about two years after an incident in which he was taken into custody by security forces on suspicion that he was an LTTE [Liberation Tigers of Tamil Eelam] supporter. 5. The applicant claimed that in December 1997, K advised him that he wanted to start some sort of business and he had already established contacts. He said he had contacts with dealers abroad to export garments from Sri Lanka but what promised to be a lucrative enterprise was hamstrung by a lack of warehouse facilities. The applicant claimed that in the third week of February 1998, K asked the applicant if he could help him by storing some of his textiles in part of this warehouse. The applicant claimed that he acceded to the request as a personal favour. 6. The applicant claimed that in the second week of March 1998, K came to his residence with two Tamil youths and introduced them as his business partners. The applicant claimed that he gave his business card to one of them and asked them to contact him during the second week of April, by which time he believed he would be able to make the necessary arrangements for the goods to be stored. 7. The applicant claimed that he heard nothing and so he called at the boarding house where the business partners were staying. He claimed he was told by other inmates that the residence was cordoned off and searched and that one of the business partners was taken into custody along with explosives found in his possession. 8. The applicant claimed that on 15 April 1998, K, one of the business partners and another person met him and told him the goods were arriving on 20 May 1998 and asked him to make arrangements to store them. The applicant claimed that he refused. The applicant claimed that he was threatened. The applicant claimed that this incident showed that K and his friends were members of the LTTE. 9. The applicant claimed that on 7 May 1998, K contacted him and informed him that security officers had arrested his business partner and were searching for K himself. He claimed that K stated that because the business partner had the applicant's business card, the security forces would wish to interrogate the applicant and when they did so he should not disclose K's name and the arrangements regarding the warehouse. 10. The applicant claimed that he and his wife were frightened, left the house and went to stay at his wife's aunt's house. He claimed that on the same day, late at night, the security forces came to his house and questioned his in-laws about his whereabouts. 11. The applicant said that because his wife was employed by the airline department, she was able to bring their departures forward and they were able to leave Sri Lanka. The applicant claimed that after he arrived in Australia, he was informed by his in-laws that the security forces had come to his residence in search of him and they told his father-in-law they had gathered a substantial body of information about his involvement in the LTTE. 12. Submissions to the Tribunal, by the applicant's adviser, were that people believed to be sympathetic to LTTE were being systematically harassed and persecuted in Sri Lanka. The applicant's claim put by their adviser was that the applicants were perceived by the authorities as people with close links to the LTTE and therefore a challenge to the authorities. The adviser put that as far as the security situation in Colombo was concerned, even a remote suspicion was sufficient for the authorities to arrest, detain and torture a person.'