Applicant M169-03 v MIMIA & Ors

[2005] HCATrans 413

[2005] HCATrans 413

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M212 of 2004

B e t w e e n -

APPLICANT M169 OF 2003

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS, MR J. VRACHNAS SITTING AS THE REFUGEE REVIEW TRIBUNAL AND MS KERRY BOLAND IN HER CAPACITY AS SENIOR MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Respondents

Application for special leave to appeal

Publication of reasons and pronouncement of orders

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 16 JUNE 2005, AT 9.47 AM

Copyright in the High Court of Australia

__________________

GLEESON CJ:   The applicant is a citizen of Sri Lanka.  His mother was a Burgher and his father was of Tamil heritage.  He claims to be entitled to refugee status by reason of a well-founded fear of persecution on account of his Tamil ethnicity.

The Refugee Review Tribunal affirmed the decision of a delegate of the Minister to refuse to grant the applicant a protection visa.  The Tribunal rejected the applicant’s claims to fear violence at the hands of those opposed to Sri Lankan Tamils, partly on the basis of the applicant’s concessions that he had not suffered physical violence in the past, and partly by reference to country information indicating that future violence against Tamils was unlikely.  The Tribunal also rejected the applicant’s claim that he feared being unable to obtain employment due to his Tamil ethnicity.  The Tribunal considered that it was unlikely that the applicant and his father would have been able to pass themselves off as Burghers in order to obtain employment since it would have been necessary to produce their birth certificates, thereby identifying themselves as being of Tamil extraction.  Thus, the Tribunal considered the applicant’s claims about his employment prospects to be implausible.

The applicant applied to this Court for orders nisi for constitutional writs.  The application was remitted to the Federal Court, where it was dismissed by Finkelstein J as disclosing no jurisdictional error in the decision of the Tribunal.  Although it was not raised by the applicant, his Honour expressed the view that it was likely that the Tribunal had denied the applicant procedural fairness in drawing adverse inferences in relation to the applicant’s employment opportunities in Sri Lanka, but that any such error “would [not] have affected the outcome having regard to the other findings made by the Tribunal”.  The Full Court of the Federal Court (Tamberlin, North and Dowsett JJ) dismissed an appeal, determining that it would be inappropriate to raise that issue as a ground of appeal, as it had not been raised at first instance and, in their Honours’ view, had no prospect of success.

We have reviewed the applicant’s written case and the decision of the Tribunal and the decisions of the Federal Court.  There are insufficient prospects of success in any appeal to this Court from the Full Court.  Accordingly special leave to appeal is refused.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing this application for special leave.

AT 9.50 AM THE MATTER WAS CONCLUDED