FEDERAL COURT OF AUSTRALIA

De Silva v Minister for Immigration & Multicultural Affairs [1999] FCA 1834

MIGRATION – application for protection visa – whether procedures required by the Act observed in connection with the making of the decision – whether Tribunal failed to make finding on material question of fact – whether applicant invited to appear before Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review

Migration Act 1958 (Cth)

Thevendram v Minister for Immigration and Multicultural Affairs (1999) FCA 182, cited

Minister for Immigration and Multicultural Affairs  v Eshetu [1999] HCA 21, (1999) 162 ALR 577, cited

DODAMPEGAMAGE KUMUDU SUSIL DE SILVA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1096 of 1999

BRANSON J

SYDNEY

13 DECEMBER 1999

THE COURT ORDERS THAT:

1.         The decision of the Refugee Review Tribunal be affirmed.

2.         The applicant pay the costs of the respondent.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT (EX TEMPORE)

INTRODUCTION

1                     By an amended application filed in Court today the applicant seeks review of a decision of the Refugee Review Tribunal (the “Tribunal”).  The applicant is a Sri Lankan national of Singhalese ethnicity.  He arrived in Australia on 2 October 1997.  He applied for a protection visa pursuant to section 36 of the Migration Act 1958 (Cth) (the “Act”) on 12 November 1997.  This application was rejected by a delegate of the Minister on 28 November 1997 and the applicant applied for a review of that decision by the Tribunal on 10 December 1997.

2                     As I have mentioned, the applicant is Singhalese and not Tamil.  However, he worked in Sri Lanka for a large Tamil owned company.  In August 1997, at the request of a Tamil friend, he gave two young Tamil men a lift.  Subsequently a bombing incident occurred at Yala and the two young men apparently came under suspicion.  In early September 1997 the applicant was questioned by army personnel about the two young men.  The army personnel raised with the applicant his employment by a Tamil owned company, suggested that he supported the Liberation Tigers of Tamil Eelan (the “LTTE”) and expressed the opinion that Singhalese who assist the LTTE should be shot.  The army personnel threatened to take the applicant into custody if the two young men had not surrendered by the end of October 1997.

3                     On 22 September 1997 the applicant was issued with a passport in his own name and on 1 October 1997 he left Sri Lanka from the international airport without difficulty.

4                     Mr Karp, who appeared for the applicant before the Tribunal as well as before this Court, advanced two principal submissions.  First, that the Tribunal failed to observe a procedure required by s 430(1)(c) of the Act to be observed in that it failed to make a finding on material question of fact, namely, whether men in civilian clothing called at the applicant's home in Kandy on two occasions after he came to Australia.

5                     Secondly, that the Tribunal failed to observe a procedure required by s 425(1) of the Act to be observed in that it failed to provide the applicant with an opportunity to give evidence and present argument relating to his having been able to depart Sri Lanka on a passport issued in his own name if he were wanted by the authorities.

6                     Section 430(1) of the Act, in effect, requires the Tribunal to set out in its written reasons for decision findings on all material questions of fact.  A material question of fact is one which is central to the case raised on the material and evidence (Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182 at para 37).

7                     The evidence concerning the visit of the men in civilian clothing appears at p 15 of transcript of hearing before the Tribunal.  The evidence was as follows:

“After my return from Sri Lanka two people have come and looked for me at my Kandy house, and after that again.”

In response to a question from the Tribunal he said:

“Two civilians, they were in civil.”

The applicant went on:

“And … on the second occasion too, my own wife has written and said that … she saw a Jeep and they were in civil and that they came and … asked for me and they had said, O.K. he has to come, return one day and they had gone back.”

8                     With reference to this evidence, the Tribunal, in its written reasons observed that no particular conclusion necessarily flows from the reported inquiry at the applicant's home about his whereabouts.  It may be that this passage in the Tribunal's reasons could have been better expressed.  However, the reasons are not to be overzealously analysed.  I understand the Tribunal in the passage to be saying that it did not attach weight, in the circumstances, to the vague and inconclusive evidence concerning the visit or visits, (the evidence is not, entirely clear in this regard) of the men in civilian clothing who may or may not have represented the authorities, and whose intentions concerning the applicant were they able to find him, were unknown.

9                     That is, the Tribunal took the view that, assuming it to be true, it was not assisted one way or the other by the evidence.  The Tribunal accepted that the authorities may wish to question the applicant concerning the two young Tamil men.  In the circumstances of the applicant’s case I do not regard the Tribunal as having been under an obligation under section 430(1) to make a finding of fact concerning whether men in civilian dress visited the applicant's home in Kandy.  Such a finding was not in the context of the other findings made by the Tribunal, a finding on a material question of fact.

10                  I turn to the applicant's submissions concerning s 425 of the Act.  Section 425(1) provides as follows:

The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

11                  The applicant accepts that he did receive the invitation of which section 425(1) speaks and that he attended before the Tribunal with Mr Karp, a solicitor with considerable experience in refugee matters.  It is not suggested that Mr Karp was placed under any restrictions in advancing his client's cause before the Tribunal.  The applicant's complaint is that the Tribunal did not tell Mr Karp that it proposed to place weight on the applicant's ability to leave Sri Lanka from an international airport in considering whether or not the applicant was of any interest to the Sri Lankan authorities.

12                  I observed that the capacity of an individual to obtain, without resorting to bribery or other improper means, a passport in his or her own name, and to pass through airport security checks without difficulty, is commonly relied on by decision makers as suggesting that the individual is not of interest to the authorities.

13                  More importantly, however, I do not consider that s 425 imposes any procedural obligation within the meaning of s 476(1)(a) of the Act on the Tribunal subsequent to its issuing of the invitation referred to in the section.

14                  The way in which the Tribunal is to operate is indicated by section 420 of the Act.  A failure by the Tribunal to operate in such a way is not a failure to observe a procedure required by the Act to be observed within the meaning of section 476(1)(a) of the Act, Minister for Immigration and Multicultural Affairs  v Eshetu [1999] HCA 21, (1999) 162 ALR 577.  A breach by the Tribunal of the rules of natural justice does not give rise to a ground of complaint before this Court.  It would be artificial, in my view, to construe s 425 as indirectly imposing on the Tribunal an obligation to advise an applicant during the course of the hearing of each matter upon which the Tribunal proposed to place weight for the purpose of allowing the applicant to present argument on the topic.  I do not so construe it.

15                  Mr Karp acknowledged that unless it could be established that the Tribunal failed to observe a procedure that the Act required it to observe within the meaning of section 476(1)(a) of the Act in one of the two ways discussed above the application must fail.  He was, in my view, right to do so.  The Tribunal found as a matter of fact that there was no real chance of the applicant being arrested or detained as an LTTE member or supporter.  That finding was open to the Tribunal on the evidence and material before it.  In the face of that finding, the other criticisms made by the applicant of the Tribunal's reasoning process are of no significance so far as this application is concerned.

16                  For these reasons the decision of the Tribunal will be affirmed.

17                  The applicant will pay the costs of the respondent.

Associate:

Dated:                                           23 December 1999