Addarage v Minister for Immigration and Multicultural Affairs

[1999] FCA 1145

FEDERAL COURT OF AUSTRALIA

Addarage v Minister for Immigration & Multicultural Affairs [1999] FCA 1145

PREETHI VIRAJ JAYARUK ADDARAGE v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 165 OF 1999

EINFELD, BRANSON and HELY JJ
SYDNEY
13 AUGUST 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 165 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	PREETHI VIRAJ JAYARUK ADDARAGE Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGES:	EINFELD, BRANSON and HELY JJ
DATE:	13 AUGUST 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT OF THE COURT

1. This is an appeal from a decision of a single judge of the Court given on 5 February 1999.  The matter before Justice Whitlam was a decision of the Refugee Review Tribunal given on 25 May 1998 affirming a decision by a delegate of the Minister for Immigration not to grant a protection visa to the applicant and his wife.

2. The first matter dealt with by his Honour was whether there should have been an adjournment of the hearing in order to permit the appellant to obtain legal advice.  We have considered the decision in that respect.  It is our view that his Honour had a discretion in the matter as to whether or not to grant the adjournment and that in the circumstances to which he referred in his reasons for judgment, the exercise of his discretion not to grant the adjournment was not a miscarriage.

3. When the appeal was called today, the appellant again appeared unrepresented.  He told us that he does not have a lawyer and has not been able to obtain one.  It has emerged in the course of this appeal that in March this year, after the first instance hearing, the Australian Government Solicitor wrote to the appellant and urged him to obtain a lawyer to assist him in this appeal.  It was pointed out to the appellant in the letter that a lawyer was an important element in his presentation of the appeal and the appellant was given two organisations to approach to assist him to obtain a lawyer, viz. the Legal Aid Commission and the Law Society.  It appears that the appellant approached both of these organisations but was refused assistance after the circumstances of his case had been considered, on the ground that his case was not strong enough to justify the making available of legal aid. 

4. The appellant did not in terms ask this Court for an adjournment to permit him to obtain a lawyer.  However, on the assumption that such an application was implied, we have considered the possibility of granting him an adjournment for that purpose but have decided that in the circumstances nothing would be gained from the appellant's point of view by our doing so.  This decision has been made in the light of the second question dealt with by the primary judge, viz. whether there was any error committed by the Refugee Review Tribunal in its consideration of the appellant's case.  Having in mind the narrow area which this Court is permitted to traverse in cases of this kind, we have considered all the possible legal attacks that could be made on the judgment below and on the decision of the Tribunal.  The Tribunal's decision not to grant asylum to the appellant was largely based upon the implausibility of the case which he sought to make out.  The Court has on several occasions in the past commented on Tribunal decisions of this kind being made on the ground of credibility alone without a reasoned consideration of the circumstances which might justify such a finding, and we have considered whether this might be such a case.  The learned primary judge did not consider that there was anything untoward in the Tribunal's conclusions.

5. The decision of the Tribunal was based upon a number of inconsistencies or unsatisfactory aspects in the appellant's case.  If the decision to reject his claims had been made on one or perhaps two of the grounds, it might have been able to be attacked in a more vigorous way but in fact the Tribunal based its decision upon a number of unsatisfactory aspects of the case.  Our jurisdiction in the matter is to consider, not whether these findings were wrong in fact or whether we ourselves would have come to a different conclusion, but whether his Honour made any identifiable legal error in his approach to that decision.  We are able to find no such error, nor are we able to detect any legal error in the way the Tribunal addressed its task. Although his Honour’s judgment was brief, it does appear to us to contain a quite adequate basis for rejecting the appeal from the Tribunal's decision. 

6. As there is no basis for disturbing the decision of the primary judge, the only result available to us is to dismiss the appeal.  The appeal is therefore dismissed with costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Einfeld, Branson and Hely JJ.

Associate:

Dated:             13 August 1999

The applicant appeared in person with the assistance of Mr G. S. J. Gangoda (interpreter).
Counsel for the Respondent:	Ms V. A. Hartstein
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	13 August 1999
Date of Judgment:	13 August 1999