FEDERAL COURT OF AUSTRALIA

Ratnayake Liyanage v Minister for Immigration & Multicultural Affairs [2001] FCA 1026

MIGRATION – protection visa – review of decision of Refugee Review Tribunal refusing visa – applicant a citizen of Sri Lanka – whether Tribunal made an error of law – whether there was no evidence to justify the decision – matters of weight for Tribunal

Migration Act 1958, s 36, s 476(1)

Migration Regulations, Schedule 2, clause 866.221

Abebe v Commonwealth (1999) 197 CLR 510 followed

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 followed

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 followed

Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 followed

DAYARATNE RATNAYAKE LIYANAGE v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 594 of 2000

KENNY J

1 AUGUST 2001

MELBOURNE

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.

REASONS FOR JUDGMENT

1                     This is an application under s 476(1) of the Migration Act 1958 (“the Act”) for review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 29 June 2000, affirming a decision of the respondent, by his delegate, not to grant the applicant a protection visa.

background facts

2                     The applicant, who was born on 8 February 1962, is a citizen of the Republic of Sri Lanka. He arrived in Australia on 2 July 1995. At the time of his arrival, he held a Sri Lankan passport, issued in Colombo on 25 July 1991, and an Australian student visa. He subsequently made an unsuccessful application under the Employer Nomination Scheme. At the time he made his application for a protection visa on 30 June 1997, he held a Sri Lankan (Temporary) (class TT), subclass 435 (Sri Lankan) visa valid until 31 July 1997. A delegate of the respondent refused his protection visa application on 27 August 1997. The applicant applied to the Tribunal for review of that decision on 18 September 1997. The Tribunal held a hearing on 12 April 2000. The applicant was notified, by letter dated 14 July 2000, of the Tribunal’s decision to affirm the delegate’s decision. Subsequently, the applicant made a review application to this Court.

legislative framework

3                     Section 36 of the Act provides:

(1)    There is a class of visas to be known as protection visas.

(2)    A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

The Refugees Convention is defined in s 5(1) as the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Refugees Protocol, as the Protocol relating to the Status of Refugees done at New York on 31 January 1967.

4                     Schedule 2 of the Migration Regulations 1994 makes further provision for protection visas. Clause 866.221 of Schedule 2 provides that it is a criterion for a protection visa that the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Protection obligations arise in relation to a person who falls within the definition of “refugee” in the Convention as amended by the Protocol (collectively, “the Convention”). A refugee is defined in Article 1A(2) of the Convention as any person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country … .

applicant’s protection visa application

5                     The decision under review in this proceeding is the Tribunal’s decision that it is not satisfied that the applicant has a well-founded fear of being persecuted in Sri Lanka by reason of political opinion. At the hearing, the applicant did not press the contention, made in written submissions, that the Tribunal erred in finding that he was not a member of a particular social group that had a well-founded fear of persecution in Sri Lanka.

6                     In his protection visa application, the applicant claimed that, in September 1989, a group of “armed people” broke into his family’s house to arrest his younger brother (Ratnayake Liyanage Senarath) on account of his involvement with the Janatha Vimukthi Peramuna (“JVP”). The JVP had been banned by the then government constituted by the United National Party (“UNP”). The applicant said:

They arrested and covered the eyes with [a] piece of black cloth. Then I started to shout with fear. Then they threatened me as well by gun pointing at me.

7                     The applicant stated, “I was the person who act[ed] as a key member of my family to search [for] my missing brother” and, in consequence, he too became the subject of inquiry by “that particular group”. The applicant added:

I am sure they are still behind me to destroy my life as they have done for my youngest brother. Several time[s] they have come (in the night) and search[ed] my house.

8                     The applicant stated that, on account of his fear of reprisal, he went to Saudi Arabia, although he subsequently returned to Sri Lanka and lived in Colombo. He added:

Even now they show the country is peaceful but underworld thugs activities [are] still going on in my motherland. I never trust they can assure my protection since the unknown armed people freely (without number plate) running by the vehicle in the night time specially rural areas and suburbs.

The applicant added “I [am] still shocked [at] gun pointing at me”.

9                     The applicant asserted in his application that he had no “idea about protection visa and I believed that I would be able to go after 2 years but I found it definitely make my life danger still”.

10                  Under cover of a letter dated 5 July 1997, the applicant forwarded a number of documents to the respondent’s Department (“the Department”), including a statement that:

I strongly believe that they know that my eldest brother and myself were searching for my missing youngest brother from the date he disappeared. We were hardly trying to get information by going to every army camps and other independent organisation such as International Red Cross, Amnesty International. They couple of time came to my home and threaten my parents asking about me and not to search [for] my missing brother. (They always come at night.)

Even after couple of years (in 1992) they followed my eldest brother. When he ride the motorcycle they followed and knock him. They destroyed my eldest brother. He is dead by that accident. So I was afraid to live in Sri Lanka further. I tried to get out from my country for limited period. Then I decided to go to Middle Eastern country – Kingdom of Saudi Arabia through an employment opportunity. I stayed there for two (2) years. I hoped to come back to Sri Lanka after the contractual period.

They have not given up chasing me I still lived away from my family until I come to Australia. They threaten me through my family as I was trying to get some information about my missing brother.

They know that I am the person who is trying to put them in trouble back. That is why they are trying to get rid of me.

…

Higher Authorities cannot protect my life as my two brothers lost their lives. My parents do not want [me] to come back there even if they miss me for long time.

The applicant provided further documentation under cover of a letter dated 17 July 1997.

11                  Following his application to the Tribunal for review of the delegate’s decision, the applicant provided a further statement (apparently on 6 May 1999) in which he claimed that family members had advised him not to return to Sri Lanka since his life would be endangered. He referred to the death (from conditions brought about by harassment from the security forces) of his first wife in Sri Lanka on 8 July 1998, and to his subsequent re-marriage in Australia in January 1999. He also stated:

I was informed by my parents that they are being harassed and threatened by unknown people and they demanded many information about me and also they wanted my father to give some adverse statement against me in writing. When my father refused, they had threatened him to cause bodily harm. Due to the above harassment and threats, my father had the second heart attack in September 1998.

On 20th March 1999, some gunmen broke into my parents house and threatened my father to give a written statement against me. As my father refused, they had threatened him and I do not know what else they did to him. As a result of this, my father had the third heart attack and died.

12                  By letter dated 31 May 1999 (received by the Tribunal on 25 June 1999), the applicant forwarded a death certificate of his elder brother “who died in fatal accident as our enemy knocked him off while he was riding a motor bicycle”. Subsequently, by letter dated 7 April 2000 (received by the Tribunal on 10 April 2000), the applicant’s representatives forwarded a further statement by him and a submission in support of his application. In his statement, the applicant referred to the death of his elder brother in 1992, stating:

We all believe that the people targeted my elder brother must be the people who kidnapped my younger brother or any person or persons acted on their instructions.

In 1992, my … elder brother was run over by a vehicle in the presence of his wife. The vehicle which knocked and killed my brother did not stop. His wife told us that it was not an accident as the said vehicle had every opportunity to avoid the accident but it did not. My brother’s wife noted down the vehicle number and the case in respect of the said accident is still going on as many influential people are connected to the driver of the said vehicle.

Following the above accident, on two occasions I noticed people followed me. Thereafter, I feared to stay in my country and managed to get a two years contract job in the Middle East and left for [the] Middle East.

13                  The applicant said that, when he returned to Sri Lanka, “due to fear of my life” he resided at a friend’s house some 120 miles from his family’s home. He added:

I tried every possible way to gather some information about my kidnapped brother and about the people who have kidnapped him. In this respect, I was in constant contact with the Missing Peoples’ Parents Association which held meetings at Colombo public library every month.

While I was staying away from my house, I went once a month to my parents’ house in nights.

During this period, once I went to see a family in Matara who also lost one of their children and collected some more information in respect of my brother’s kidnapping. After I visited the above house, some unknown people had gone to the above house and they were questioned about my visit to their house. As they were very scared, they advised me not to visit their house thereafter.

14                  The applicant referred to the fact that, in April 1995, he gave evidence before a Commission appointed by the government of Sri Lanka to investigate the disappearances of people such as his brother. He claimed that, although the evidence was given “in confidence”, “people noted us and the vehicle we used”. He commented that “[a] few of the witnesses” were “severely attacked by unknown people and the attackers were not traced by the authorities”.

15                  The applicant claimed that he sought to come to Australia “purely to escape from my country”. He continued:

As the Australian government did not extend the Sri Lankan Temporary Entry Permit after 31 July 1997, I approached the Department of Immigration and explained my situation and expressed my fear to return to my country, on their advise [sic] I lodged an application for a Protection Visa.

16                  Amongst the documents attached to the submission dated 7 April 2000 from the applicant’s representatives was a letter dated 15 November 1999 from the applicant’s mother to the applicant. The letter (in translation) stated that a man by the name of Rotti Sunil, had visited the applicant’s mother, saying, in the course of his visit, that any evidence collected by the applicant concerning the kidnapping of his brother should be destroyed in case it caused trouble to the applicant. According to her letter, Rotti Sunil was “the brother-in-law of a person in the higher ranks of the Commando Unit that worked in relation to the abduction of the younger brother”. In their submission of 7 April 2000, the applicant’s advisers stated:

The applicant feels that the said Roti Sunil [sic] must have been sent either by his brother who is working in the Commando Unit or by some others in the Sri Lankan Army. Further, … the applicant fears that the Sri Lankan army is having an ongoing interest in him and his life will be endangered by the people in the Sri Lankan Army who are responsible for the kidnapping and killing of his brother.

17                  Following the hearing before the Tribunal, the applicant’s representatives provided a further submission dated 20 April 2000 to the Tribunal. The submission referred to a number of documents concerning the disappearance of the applicant’s younger brother, including a copy of a letter (in translation) from the Presidential Commission of Inquiry into Involuntary Removal or Disappearances of Persons in Western, Southern and Sabaragamuwa Provinces, addressed to the applicant’s father, inviting him to give evidence on 15 December 1995; a letter (in translation) dated 24 July 1990 from a Member of Parliament to the Secretary, State Ministry of National Security; and a letter (in translation) dated 3 October 1989 from the Presidential Secretariat. The submission also referred to three pending insurance cases arising out of the applicant’s elder brother’s death.

reasons for tribunal’s decision

18                  After describing the applicable legal regime in terms familiar to this Court, the Tribunal turned to the applicant’s “Claims and Evidence”. Under that heading, the Tribunal referred to the claims made by him at the time of his protection visa application in mid 1997; the submissions received by the Tribunal on 6 May 1999, 10 April 2000, and after the hearing; and the applicant’s evidence on 12 April 2000.

19                  Under the heading “Findings and Reasons”, the Tribunal stated that it accepted that the applicant’s younger brother was kidnapped and was presumed dead. It also accepted that the applicant had made inquiries about his brother’s disappearance. After noting that the applicant had been in Australia for two years before making his protection visa application, the Tribunal stated:

Even though he had applied and obtained a 435 visa the Tribunal regards this delay in the application as significant since the reason he claims to have come to Australia was to escape persecution yet he, apart from the student visa with which he entered Australia, applied for two different visas (the employer nomination and the 435) before applying for protection. The Tribunal does not accept the applicant’s claim that he was depressed when he arrived in Australia as the reason he did not apply for a Protection Visa as he allowed two years to pass before making such an application and this was made only when other avenues to remain in Australia had failed.

20                  The Tribunal noted that the applicant had “included in his claims at every submission, elements which were not contained in the previous set of claims”. The Tribunal continued:

For example the issue of the death of his elder brother was not raised at the time of the first submission but was contained in a supplementary submission. The death occurred in 1992, well before the applicant came to Australia so it was known to him at the end of his initial application. The death of this brother in a road accident has been construed by the applicant to be murder committed by the same people who took away his younger brother. There is no evidence before the Tribunal to indicate that this was anything other than a road accident. The fact that the compensation cases brought by relatives are still pending, does not constitute evidence to support the applicant’s thesis.

Similarly, the claim that he was followed after his elder brother’s death and this caused him to go to the Middle East was only made in the April 2000 submission. His brother was killed in an accident in Nagoda and the applicant was living in Maharagama some 45 kilometres away. If he had actually been followed as he claims, the single person who seems to be after him would need to have extensive resources to be able to track the applicant and presumably his other brothers to take revenge on them. It is not plausible to the Tribunal that this occurred; if the person described was intent on harming the applicant there is no reason that he would not have done so over a period of years. In fact the applicant has not claimed to have been physically confronted by anyone over the whole period of his residence in Sri Lanka. The Tribunal cannot reconcile the description of his pursuer as someone who is sufficiently ruthless to kidnap and kill (presumably) the applicant’s younger brother and someone who has vowed to kill all the ‘JVPers in the village’ with the description of the same person who contacts the applicant’s mother through his brother (or brother-in-law) and asks for incriminating material to be destroyed, and this ten years after he has made someone disappear. The Tribunal also finds it implausible that this person was so well-organised in the pursuit of the applicant that he would harass a family to whom the applicant had made a single visit in a city like Matara.

21                  Concerning the applicant’s efforts to bring his younger brother’s disappearance to the attention of the authorities, the Tribunal noted:

[I]n the April 2000 submission the applicant indicated that he gave evidence before the Commission into Disappearance in April 1995, yet at the hearing he twice said that he gave evidence in April 1992.

After referring to reports by the Sri Lankan Information Monitor, the Tribunal concluded “there were no Commissions in 1992 and it is prepared to give the applicant the benefit of the doubt and accept that the evidence was given in 1995”.

22                  The Tribunal did not accept, however, that the applicant was detected in attending the Commission when he gave evidence in April 1995. It said:

His claim in relation to this is vague and far-fetched, especially given that at the hearing he said that he had attended the commission in his company vehicle.

23                  Since “the opportunity [would have been] available to the would-be perpetrators to harm the applicant over a period of years and this opportunity [was] not … taken”, the Tribunal declined to accept that “someone called Roti Sunil is harassing the applicant’s mother in order to get at the applicant”. The Tribunal added:

The fact that there are contradicting statements in terms of the relationship of Roti Sunil to the ‘person of high rank in the commando unit’, having been referred to as the brother and brother-in-law, confirms for the Tribunal the contrived nature of the claims relating to alleged recent interest in the applicant.

24                  The Tribunal concluded:

In summary, the Tribunal accepts that the applicant has attempted to bring to the notice of authorities the disappearance of his brother however it does not accept that some ten years after his brother’s disappearance he faces a real chance of being persecuted because of either the information which certain persons believe he has or because he gave evidence to the Commission on disappearances.

Accordingly, the Tribunal said that “[h]aving considered the evidence as a whole”, it was not satisfied that the applicant was a person to whom Australia owed protection obligations under the Refugees Convention.

grounds of review

25                  In his application, which was amended by leave, the applicant sought review on the grounds identified in pars 476(1)(a), (b), (c), (e) and (g) of the Act. Counsel for the applicant subsequently abandoned the applicant’s reliance on s 476(1)(a) and s 430 and, as already noted, a contention about membership of a particular social group.

26                  Counsel for the applicant submitted that the Tribunal’s decision involved an error of law, being an error involving an incorrect interpretation of the applicable law to the facts as found, because:

The Tribunal did not address the substantial evidence and failed to ask the correct question regarding official documents … .

The Tribunal fell into error in that it did not address the substantial evidence of the applicant when it erroneously found that the applicant’s claim that his brother was killed in Nagoda was made in the April 2000 submission. This material claim was made to the case officer of the [respondent’s Department] in the applicant’s submission on the fifth July 1997 … .

The Tribunal failed to take into account a material consideration and failed to ask the correct question when it did not accept that some 10 years after his brother’s disappearance the applicant faces a real chance of persecution because of the information which certain persons believe he has or because he gave evidence to the Commission on Disappearances and failed to consider that in finding he gave evidence to the Commission this occurred in April 1995 not 10 years ago. Further, in finding that the applicant attended the Commission in a company vehicle, failed to consider the material claim as to why the applicant did not attend in his own vehicle.

The Tribunal failed to consider that 435 Visa was for Sri Lankans (and Yugoslavs) who could not return to their country and an employment visa if granted would give the applicant permanent residence.

27                  Counsel for the applicant also submitted that the Tribunal’s decision involved an error of law because, “[i]n finding that the applicant had never been physically threatened [the Tribunal failed] to refer to the fact that when the applicant’s younger brother was abducted the applicant was threatened by armed people and a gun was pointed at the applicant”.

28                  Finally, relying on s 476(1)(g) and s 476(4)(b) of the Act, the applicant’s counsel contended:

The Tribunal based its decision on a particular fact that the Applicant’s claim that his brother was killed in an accident in Nagoda was made in the April 2000 submission a fact that did not exist.

29                  In the review application and in written contentions, the applicant also alleged that the Tribunal made errors of law by misconstruing and misapplying the definition of “refugee” in Article 1A(2) of the Convention because of “the weight placed on the fact that the applicant applied for two different visas (the employer nomination and the 435 before applying for protection)”; by failing to consider the whole of the material before it; and “foreclos[ing] reasonable speculation upon the chances of persecution”. At the hearing, the applicant’s counsel did not press these submissions.

was there reviewable error?

(a)    Official documents

30                  The applicant, by his counsel, contended that the Tribunal did not “address the substantial evidence and failed to ask the correct question regarding official documents”. The “official documents” were letters concerning the disappearance of the applicant’s younger brother attached to the applicant’s representative’s post-hearing submissions (referred to above) and “three insurance cases … still pending” arising from the death of his elder brother, also referred to in that submission. I can, however, detect no reviewable error in the Tribunal’s approach to these matters. The Tribunal accepted that the applicant’s younger brother had been kidnapped and was presumed dead; that the applicant had made inquiries about him; and that the applicant had given evidence to a Commission in 1995 concerning his brother’s disappearance. The Tribunal also accepted that, as the letter to his father (mentioned above) indicated, the Commission to which the applicant gave evidence was the Commission of Inquiry into Involuntary Removal or Disappearances of Persons in Western, Southern and Sabaragamuwa Provinces. Further, the Tribunal specifically dealt with the significance of the “compensation cases brought by relatives” when it said that it did not consider that they constituted “evidence to support the applicant’s thesis” that his younger brother’s killers had deliberately killed his elder brother. There is no basis for the proposition that the Tribunal’s approach manifested reviewable error.

(b)    The death of the eldest brother

31                  As the applicant, by his counsel, pointed out, he first referred to the death of his eldest brother in a statement submitted to the respondent’s Department under cover of a letter dated 5 July 1997. In this account, the brother was killed when some person or persons deliberately knocked him off his motorcycle. In this account, the eldest brother was the victim of the same person or persons who killed the applicant’s younger brother. As already noted, the Tribunal attributed this claim to a “supplementary submission” not to “the first submission”. I do not detect any error in this approach: it simply describes the applicant’s conduct in making his claims and submissions. On 30 June 1997, the respondent’s Department received the applicant’s protection visa application, Part C of which had been completed by him. This was what the Tribunal called the applicant’s “first submission”. That document made no reference to the death of the applicant’s elder brother. Under cover of the letter dated 5 July 1997, however, the applicant forwarded another statement in which he first referred to his elder brother’s death. This was the “supplementary submission” to which the Tribunal referred. It was open to the Tribunal to describe the submissions in this way. Viewed in this way, it was open to the Tribunal to regard the account of the elder brother’s death as an example of the applicant’s elaboration of his claims “at every submission”. It was also open to the Tribunal to make such observations as it did about the applicant’s account of his brother’s death.

32                  As the Tribunal noted in its discussion of the applicant’s “Claims and Evidence”, the applicant gave another account of his brother’s death in the submission received by it on 10 April 2000. This was not the “supplementary submission” to which the Tribunal referred in its “Findings and Reasons”, but “a further submission from the applicant and his adviser”. Accordingly, I reject the applicant’s submission that the Tribunal found that the claim regarding the elder brother’s death was not made before the submission that the Tribunal received on 10 April 2000. A contrary conclusion would involve a misreading of the Tribunal’s reasons.

(c)    Relevant events not 10 years old

33                  The applicant, by his counsel, submitted that the Tribunal erred in finding that:

[I]t does not accept that some ten years later after his brother’s disappearance [the applicant] faces a real chance of being persecuted because of either the information which certain people believe he has or because he gave evidence to the Commission on disappearances [because it] failed to consider the real question of Convention related persecution which was its duty to consider.

34                  This submission is misconceived because it again depends on a misreading of the Tribunal’s reasons. What the Tribunal actually said was that “some ten years after his brother’s disappearance”, it did not accept that the applicant faced a real chance of persecution “because of either the information which certain persons believe he has or because he gave evidence to the Commission on disappearances”. The Tribunal’s conclusion largely depended upon the crucial finding that it did not accept that there was any pursuer who had “a real interest” in the applicant, in the sense of a real interest in harming him. This conclusion was open to it. Further, it is not in contest that some ten years had elapsed since the disappearance of the applicant’s younger brother. There was no confusion in the Tribunal’s mind about this fact, or about the applicant’s participation as a witness before the Commission. The Tribunal specifically accepted that the applicant had given evidence to the Commission in April 1995, but it rejected his claim that he had been “detected” at the Commission and, by implication, that he was at risk on account of giving evidence to the Commission.

35                  The applicant’s challenge to the Tribunal’s findings in this regard amounts to an invitation to review the merits of the Tribunal’s decision rather than the process by which it arrived at that decision: cf Abebe v Commonwealth (1999) 197 CLR 510 at 579. The applicant’s submission concerning his attendance at the Commission in a company vehicle suffered from the same defect.

(d)    Sri Lankan (Temporary) (class TT), subclass 435 (Sri Lankan) Visa (“Temporary (subclass 435) visa”)

36                  The applicant, by his counsel, submitted that the Tribunal had failed to consider that Temporary (subclass 435) visas were for Sri Lankan citizens who could not return to their country, and an employment visa, if granted, would give the applicant permanent residence. (Yugoslav citizens were, for a time, also entitled to visas like those of Sri Lankan citizens.)

37                  This submission is not tenable. In its consideration of the “Claims and Evidence”, the Tribunal specifically referred to the applicant’s unsuccessful application under the Employee Nomination Scheme, as well as his successful application for a Temporary (subclass 435) visa. It noted, in its “Findings and Reasons”, that the applicant had been in Australia for two years before making his protection visa application. This was beyond contest. In considering the significance of the delay, the Tribunal plainly took into account that the applicant “had applied [for] and obtained a 435 visa”. This appears from its comment that it regarded the delay as significant “[e]ven though” he had successfully obtained such a visa. It was open to the Tribunal to take this view.

(e)    Findings about physical confrontation

38                  Counsel for the applicant also submitted that the Tribunal’s decision involved an error of law because the Tribunal must have failed to have regard to the fact that the applicant “was threatened by armed people and a gun was pointed” at him at the time of his younger brother’s abduction.

39                  In its reasons, the Tribunal stated that “the applicant has not claimed to have been physically confronted by anyone of the whole period of his residence in Sri Lanka”. At first impression, this statement would appear to disregard the applicant’s account of his brother’s abduction, in the course of which the applicant claimed he had a gun pointed at him. If, however, the Tribunal’s reasons are read as a whole, and the statement is considered in context, then the possibility that the Tribunal made any operative mistake in its finding of fact is removed.

40                  The Tribunal made the statement about claims of physical confrontation in the midst of a discussion about the applicant’s claim that his brother’s killers had followed him after his elder brother’s death. Before making the statement in question, the Tribunal had remarked that “if the person described was intent on harming the applicant there is no reason that he would not have done so over a period of years”. Immediately after the challenged statement, the Tribunal stated that it could not reconcile the description of the applicant’s pursuer as a ruthless killer with the description “of the same person who contacts the applicant’s mother … and asks from incriminating material to be destroyed …”. In the same paragraph, the Tribunal also rejected the possibility that a pursuer had harassed the family to whom the applicant had made “a single visit” in Matara.

41                  With this context in mind, I accept, as the respondent submitted, that the Tribunal “was contrasting the applicant’s claims of being pursued over a long period of time, with the absence of any physical harm to the applicant, in the period, since the apprehension of his younger brother”. Bearing in mind the comments in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2 and 291, I would not impute to the Tribunal the error that the applicant alleges.

42                  In any event, if I am wrong, and the Tribunal made the error alleged, that error would not be a reviewable error. The error would amount to a wrong finding of fact. That is not, of itself, a reviewable error: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at [83]-[84] per McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed).

(f)      The no evidence ground

43                  Finally, the applicant’s counsel submitted that there was no evidence or other material to justify the making of the decision since the decision was based on the existence of a particular fact, and that fact did not exist. The relevant fact that was said not to exist was that “the Applicant’s claim that his brother was killed in an accident in Nagoda was made in the April 2000 submission”. As the applicant’s counsel pointed out, this was a matter which the Tribunal apparently took into account when considering the applicant’s credibility. For the reasons already given, I reject the applicant’s submission that the Tribunal found that the claim concerning his elder brother’s death was not made until April 2000. The Tribunal’s reasons are consistent with its appreciation of the fact that the claim was made under cover of the letter of 5 July 1997. There is, therefore, no need to consider this matter further.

44                  I also note that, in written contentions of fact and law, the applicant relied on s 476(1)(g) and (4)(b) in submitting that “because the Tribunal overlooked the earlier claims of the applicant [that he was threatened verbally and by a gun] the person who made the decision based the decision on the existence of a particular fact that did not exist”. For the reasons already stated, I reject the submission that the Tribunal “overlooked” the applicant’s earlier claims. There is no need to consider this submission further.

(g)    Additional matters

45                  As already noted, counsel for the applicant did not attempt to support the allegation, appearing in the applicant’s review application, that the Tribunal had misconstrued and misapplied the definition of “refugee” in Article 1A(2) of the Convention because of “the weight placed on the fact that the applicant applied for two different visas …”. Plainly enough, that contention was bound to fail. Further, there is nothing in the Tribunal’s reasons to support the proposition that the Tribunal failed to consider the applicant’s claims and evidence as a whole. Nor is there any basis upon which it might be said that the Tribunal had had failed to act as required by the Full Court of this Court in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 239-241 and 255.

46                  For the reasons stated, I would dismiss the application with costs.

Associate:

Dated: 1 August 2001