FEDERAL COURT OF AUSTRALIA

Gamage v Minister for Immigration & Multicultural Affairs

[2000] FCA 995

NISHANTHA GAMAGE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1286 OF 1999

GYLES J

SYDNEY

27 JULY 2000

THE COURT ORDERS THAT:

1.                  The application be dismissed.

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

1                     The applicant, Nishantha Gamage, is a citizen of Sri Lanka, who arrived in Australia on 26 June 1996.  On 27 June 1997 he lodged an application for a protection visa pursuant to the Migration Act 1958 (Cth) (“the Act”).  An application was also made on behalf of his wife as a family member.  The answer given to questions in each application designed to ascertain the basis for the claim to qualify for a protection visa was “Refer to the forthcoming statement”. 

2                     On 10 July 1997, a delegate of the Minister for Immigration and Multicultural Affairs refused each application on the basis that he was not satisfied that the applicant was a person to whom Australia had protection obligations.  In the course of the findings of fact and reasons for decision, the delegate said:

 “Mr Gamage writes in his application for a Protection Visa that he will detail why he left Sri Lanka and what he fears may happen to him if he returns to Sri Lanka in a forthcoming statement.  However, I consider there is sufficient evidence before me to conclude that Mr Gamage does not have a well founded fear of Convention related persecution in Sri Lanka.  Furthermore, I am not required to delay making a decision on a Protection Visa application because the applicant has declared that he will provide more information in a forthcoming statement …”

3                     On 13 August 1997, the applicant applied for a review of that decision by the Refugee Review Tribunal (“the Tribunal”).  The applicant provided a lengthy statutory declaration to the Tribunal with the application, setting out the basis for his claim to be owed protection obligations.  A good deal of further information of this character was provided during the course of the Tribunal’s review.  The applicant was represented by a solicitor during the course of that review. 

4                     On 7 October 1999, the Tribunal affirmed the decision not to grant a protection visa.  In short, the Tribunal did not accept the veracity of the claims put forward by the applicant. 

5                     On 3 November 1999, the applicant filed an application to this Court for an order of review of the Tribunal decision.  The reasons for the review were said to be:

 “I am not satisfied with the decision made by the Refugee Review Tribunal.  Because the Tribunal Member who took our case for the hearing was not prepared to accept our written statement, and he was very unreasonable.

We were not given an opportunity to relate our pathetic story because he was not prepared to trust us and said that our story is fabricated.  Also he never asked any questions regarding our story.  Therefore we need our case to be reviewed forthwith.”

6                     The order claimed was:

 “Therefore I pray that an order to be made in favour of me and my family granting me Refugee Status and Permanant Rescidency [sic] as I do genuinely have Fear of persecution, torture and death if I return to Sri Lanka.”

7                     In due course an amended application was filed, the substance of which was as follows:

 “1.     The procedures required by the Act to be observed in connection with the making of the decision were not observed;

2.                  That the Member of the Tribunal did not act according to substantial justice and the merits of the case in accordance with Section 420 of the Act;

3.                  The decision involved and [sic] error of law being either an incorrect interpretation of the applicable law and/or an incorrect application of the law to the facts as found by the Tribunal;

4.                  The Tribunal errored [sic] in law and/or failed to observe procedures which it was required by the law to observe in that it failed to assess the applicants (our) prospects of the persecution emerging from a consideration of all the material before it;

5.                  The Tribunal Member failed to make a fair and effective decision due to certain ventilating preliminary views induced by bias and reached an adverse conclusion to the applicants (us) rejecting every of our claims [sic];

6.                  The Tribunal Member failed to consider the written submissions dated 13 September 1999 made by the Migration Adviser and Solicitor Mr Paul Fergus and made an adverse finding on credibility of the applicant;

7.                  There was no evidence or other material to justify the making of the decision.”

8                     The applicant also filed an outline of submissions which purported to address the amended grounds.

9                     The matter came on for hearing on 18 April 2000, by which time written submissions had been received from counsel for the respondent.  The applicant was not represented.  I heard argument on that day as to the application as it stood.  The applicant was unable to add anything of substance to the written submissions.  Counsel for the respondent raised the question of jurisdiction in his written and oral submissions.  The matter was stood over until 20 April so that that issue could be further considered. 

Jurisdiction

10                  In the meantime, Mr Karp of McDonells Solicitors gave Notice of Appearance for the applicant, appeared on 20 April and sought leave to amend the Application by adding the following ground:

“The Tribunal did not have jurisdiction to make the decision, and/or the decision was not authorised by the Act or the Regulations.

Particulars

The decision of the delegate was invalid and the Tribunal had no jurisdiction to affirm an invalid decision.”

I granted leave to amend accordingly.  Mr Karp presented both written and oral submissions on the point.  The net effect was that I was invited to follow the decision of Heerey J in Li Wen Han v Minister for Immigration & Multicultural Affairs [2000] FCA 421.  Mr Jordan, for the Minister, submitted that Li Wen Han was wrongly decided, that any jurisdictional difficulty had been cured by the supply of information to the Tribunal, and invited me to follow the decision of Finn J in Phanouvong v Minister for Immigration & Multicultural Affairs [1999] FCA 1489.

11                  In view of the conflict of authority, I decided to await the decision of the Full Court in Yilmaz v Minister for Immigration & Multicultural Affairs [2000] FCA 906, in which, as it happened, I participated.  On facts indistinguishable from the present, it was decided that Phanouvong was correct and should be followed.  The ground based upon lack of jurisdiction is accordingly rejected.

12                  So far as the remaining grounds are concerned, I will not burden this judgment by setting forth the submissions of either party.  They are recorded in writing and are with the papers.  Mr Karp made clear that his retainer was limited to the question of jurisdiction, and did not add anything on the other issues.  The issues addressed by the applicant were as follows.

Failure to determine refugee status at the time of determination of application;  error of law s 476(1)(e)

13                  Having read the Tribunal decision, I can see no arguable basis for this contention.

“Failure to make findings on material (of) facts”

14                  The Tribunal did not accept the claims put forward by the applicant and explained why.  There was ample material upon which it was open to the Tribunal to come to the conclusion.  It was on this basis that the Tribunal expressly found that it was not satisfied that the applicant was a person to whom Australia had protection obligations.  The applicant does not identify any material fact which was not found, even taking an expansive view of what constitutes a material fact.  See generally Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845 and Re Minister for Immigration & Multicultural Affairs;  ex parte Durairajasingham [2000] 168 ALR 407.  No failure to comply with s 430(1)(c) has been established here.

Failure to set out reasons;   failure to observe required procedure;   s 476(1)(a) and

s 430(1)(b)

15                  It was put that the Tribunal failed to set out reasons for deciding that, despite the more recent independent evidence to the contrary, there had been no change in circumstances as a result of the renewed violence and unrest in Sri Lanka.  The Tribunal made no such express finding.  There is no obligation to give reasons about a finding which is not made.  In any event, renewed violence and unrest would not be material to the manner in which the Tribunal dealt with the case put forward by the applicant.  See Singh and Durairajasingham (supra).

16                  The application is dismissed with costs.

Associate:

Dated:              27 July 2000