FEDERAL COURT OF AUSTRALIA

Arachchige v Minister for Immigration & Multicultural Affairs [2000] FCA 928

Don PMW DAMBAGOLLA ARACHCHIGE, DEEPIKA SAMANTHI WIMALAWEERA, Don KSW DAMBAGOLLA ARACHCHIGE, Don IUW DAMBAGOLLA ARACHCHIGE and Dona RAVIHARA PLUMI DAMBAGOLLA ARACHCHIGE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N124 of 2000

WILCOX J

SYDNEY

27 JUNE 2000

THE COURT ORDERS THAT:

1.                  The second, third, fourth and fifth applicants be dismissed as parties to the proceeding.

2.                  The application be dismissed.

3.                  The first applicant, Don PMW Dambagolla Arachchige, pay the costs of the respondent, Minister for Immigration and Multicultural Affairs.

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

EXTEMPORE REASONS FOR JUDGMENT

1                     WILCOX J:  This is an application to review a decision of the Refugee Review Tribunal affirming a decision by a delegate of the Minister for Immigration and Multicultural Affairs to refuse the issue of a protection visa. 

2                     The application made to the Court is in the name of Don PMW Dambagolla Arachchige and four other persons who, I understand, are his wife and three children.  It appears the application for a protection visa was made in the name of the applicant, his wife and two of the children;  I gather the last named applicant in this Court is a child born since the making of the application for the protection visa.

3                     Nothing turns on the naming of particular applicants.  The question whether any of the applicants is entitled to a protection visa depends on whether Mr Arachchige is a “refugee” within the meaning of the 1951 Convention on the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.  Mr Arachchige claims to have a well founded fear of persecution if returned to his native Sri Lanka on account of his political opinion. 

4                     In evidence before the Tribunal, Mr Arachchige identified three sources of possible persecution, the Liberation Tigers of Tamil Eelam (“LTTE”), the Janatha Vimukthi Peramuna (“JVP”) and the People's Alliance.  The Tribunal examined these claims at some length.  It rejected them all.

5                     Mr Arachchige appeared for himself at the hearing of this review, although with the assistance of an accredited interpreter.  Mr Arachchige filed an outline of submissions which raised a number of points.  It seems apparent he had some assistance in preparing these submissions. 

6                     The first matter claimed in the submissions is that the Tribunal member failed to examine Mr Arachchige’s claims “deeply and exhaustively with an open mind”.  The submission specifies matters that the Tribunal member is said to have failed to consider. 

7                     I do not think that the member did fail to consider those matters.  They are dealt with in some detail in her reasons for decision.

8                     I realise Mr Arachchige is unhappy about the member’s findings in respect of those matters, but that is a very different matter from saying the Tribunal member failed to give them proper consideration. 

9                     The second submission complains of a failure to make a finding on material facts. 

10                  I accept any such failure would be a ground of review available under s476(1)(a) of the Migration Act 1958.  However I do not think the Tribunal member did fail to make findings on material questions of fact.  On the contrary, she set out findings in some detail and at length.  Mr Arachchige has not been able to identify any matter of substance raised by him in relation to which there are no findings of fact.  Once again, I understand that Mr Arachchige does not agree with the findings but that does not deny their existence. 

11                  There is also a suggestion in the written submissions that the member was biased and unwilling to consider the evidence on its merits. 

12                  This is a difficult claim to make good.  I do not think there is any basis for finding bias in the present case.  It is clear that the member asked searching questions of Mr Arachchige at the hearing.  She also made findings adverse to his credit.  But it was the duty of the Tribunal member carefully to examine the claims put before her; and it was important for her to reach, and express, conclusions about credibility.  The fact that she did these things does not justify a finding of bias. 

13                  I see no point in going through the detail of the factual matters raised by Mr Arachchige before me.  The facts are for the Tribunal to determine, not for the Court.  I see no error in law in the way the facts have been dealt with by the Tribunal.

14                  As it seems to me, only two matters are even faintly arguable, in support of the application for review.  The first matter was that, during the course of the hearing, Mr Arachchige asked me to receive, and read, a letter received by the Tribunal after the date of the Tribunal's decision.  The letter purported to come from a political organisation of which Mr Arachchige claimed to be a prominent member, the Mahajana Eskath Peramuna (“MEP”).  Ms Watson, solicitor for the Minister, objected to the tender of this letter and there was discussion about the admissibility of the letter and the effect it might have had on the Tribunal if received at an earlier time.  At the end of that discussion, I indicated I would reject the tender of the letter.  I gave reasons.  I attach a copy of those reasons to this judgment.

15                  The other matter is that the Tribunal hearing was spread over two days, 9 and 12 October 1998.  It appears that, at some stage during the first day's hearing, Mr Arachchige complained that the interpretation was unsatisfactory.  The Tribunal member acceded to his complaint and adjourned the further hearing to 12 October, so that a different interpreter could be employed.  This was done.  Mr Arachchige told me he had assumed the hearing would commence afresh on the second day.  This did not happen and Mr Arachchige complains of that fact. 

16                  However, it was for the Tribunal to determine what course ought to be taken.  I note the Tribunal member invited Mr Arachchige, at the beginning of the second day, to re-state his claims, if he wished.  He was also given the opportunity of putting in written submissions after the hearing.  He took advantage of this opportunity.  It seems Mr Arachchige had assistance, both during the hearing and in supplying his submissions.  I note also that, prior to making her decision, the Tribunal member caused a letter to be sent to Mr Arachchige setting out the concerns and doubts she had regarding his claims.  She invited him to respond to that letter.  He did so.  He not only made comments on the expressed concerns and doubts but forwarded some supporting documents.  In the circumstances, I do not think it can be said that any unsatisfactory interpretation on the first day had any adverse affect on the presentation of the applicant's case.

17                 I understand Mr Arachchige's unhappiness about the Tribunal decision but I do not think he has succeeded in showing any ground of review open in this Court.  Although I am sympathetic to his wish to remain in Australia, I have no choice but to dismiss the application.

[There was discussion about the parties.]

18                  Ms Watson suggests that the second, third, fourth and fifth applicants, Mr Arachchige’s wife and three children, should not be applicants in the Court, the reason being that they are not people who themselves claim to be refugees.  There is also a problem about the children being applicants, because of their age.  I think Ms Watson is right and that I should confine the application to Mr Arachchige, but the result has no practical consequence adverse to the interests of the wife and children.  Ms Watson also seeks an order for the payment of the Minister's costs.  If I make the amendment, the order would apply only against Mr Arachchige, not the wife and children.

19                  The orders that I make are:

(1)        I dismiss from the proceeding the second, third, fourth and fifth applicants;

(2)               I dismiss the application and order that the first applicant pay the costs of the respondent Minister.

Associate:

Dated:              27 June 2000

RULING ON TENDER OF LETTER

During the course of submissions, the applicant referred to a letter that was received by the Tribunal after the date of its decision.  The decision was handed down on 27 January 2000.  The letter sought to be tendered in evidence is dated 17 February 2000.  However, according to a date stamp, it was not received in the Tribunal until 22 March 2000.

The letter purports to be signed by the General Secretary of the political organisation referred to in the decision as “MEP”.  It states that the fax from the Tribunal, which was sent on 15 November 1999, was overlooked by party officials because of the Presidential Election in December 1999.  I can understand this might be so.

The letter confirms that Mr Arachchige was an active member and organiser for the MEP in the Kandy District.  There is also a reference to Mr Arachchige’s brother and a statement that Mr Arachchige has been threatened by LTTE terrorists.

There is a real difficulty in accommodating the tender of further evidence to an application for review under the Migration Act.  None of the grounds of review set out in s476(1) of the Act encompasses interference with the Tribunal’s decision because of subsequent evidence.

I was disturbed at the possibility that the Tribunal may have made findings on a false basis, assuming from the absence of a reply to the fax that Mr Arachchige must have lied when he claimed to have held a position in the MEP in Kandy.  However, I have been persuaded by Ms Watson that the letter makes no difference to the fundamental conclusions of fact reached by the Tribunal.  Essentially, the member relied on the fact that Mr Arachchige had not been harmed over a long period, for her view that he was not under threat from the LTTE.

I think I would not be justified in allowing the tender of this letter as new evidence.  I will place a copy of the letter in the papers marked MFI 1.