Fernando v Minister for Immigration and Multicultural Affairs
[1999] FCA 472
•14 April 1999
FEDERAL COURT OF AUSTRALIA
Fernando v Minister for Immigration & Multicultural Affairs [1999] FCA 472
MIGRATION - protection visa – application to Federal Court for an order to review Refugee Review Tribunal decision – question of genuineness of documents submitted – no basis for setting aside decision on a ground under s 476 of the Migration Act 1988.
Migration Act 1958 (Cth)
SUDUWA DEWAGE ATHULA UPASIRI FERNANDO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 1293 of 1998FRENCH J
14 APRIL 1999
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 1293 OF 1998
BETWEEN:
SUDUWA DEWAGE ATHULA UPASIRI FERNANDO
Applicant
AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
JUDGE:
FRENCH J
DATE OF ORDER:
14 April 1999
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The application is dismissed.
2. The applicant is to 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.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 1293 OF 1998
BETWEEN:
SUDUWA DEWAGE ATHULA UPASIRI FERNANDO
Applicant
AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
JUDGE:
FRENCH J
DATE:
14 April 1999
PLACE:
SYDNEY
EX TEMPORE REASONS FOR JUDGMENT
Suduwa Dewage Athula Upawiri Fernando is a citizen of Sri Lanka who came to Australia on 7 January 1996. In December 1996 he applied to the Department of Immigration and Multicultural Affairs for a Protection Visa. That application was refused on 17 April 1997 and on 22 May 1997 he applied to the Refugee Review Tribunal for review of that decision. On 29 October 1998, the Tribunal rejected his application and affirmed the decision not to grant a Protection Visa.
In November 1998, Mr Fernando filed an application in the Federal Court for an order of review of the Tribunal’s decision. Mr Fernando was represented at the Tribunal hearing and the application to this Court was obviously drawn up by somebody with some legal knowledge. It alleged error of law on the part of the Tribunal. It alleged also that the procedures required to be observed under the Migration Act 1958 (Cth) were not observed by the Tribunal.
The particulars of the grounds of application were very general and it would seem the application was lodged in pro forma form so that Mr Fernando would get an opportunity to be heard by this Court. When the matter ultimately came on for hearing before this Court, after an adjournment because of Mr Fernando’s illness on the appointed hearing day, he was not legally represented, but spoke to the Court through an interpreter.
There is nothing in what he has said that suggests any basis upon which the Tribunal’s decision could be set aside. His claim for refugee status was based upon evidence that he gave of work he had done for the United National Party (the UNP) in Sri Lanka. He is a graphic artist and journalist. Much of the work that he said he did was done while in the employment of a company owned by a strong supporter of the UNP. Without going through all the details of the evidence, which were comprehensively reviewed by the Tribunal, he claims, in effect, that the current government of Sri Lanka, dominated by the People’s Alliance, wants to kill him and he would be subject to persecution because of his prior support for the UNP were he to return to Sri Lanka. The Tribunal rejected substantial parts of his evidence. This Court is not authorised to review the Tribunal’s decisions about the evidence.
A particular complaint made by Mr Fernando was that the Tribunal did not accept as genuine two documents which he submitted to it. One was said to be a letter showing that his name was on an airport wanted list in Sri Lanka. The other was said to be a warrant for his arrest. For reasons set out in its decision, the Tribunal did not accept those documents as genuine. Moreover, it found it implausible that Mr Fernando would be pursued by authorities for the reasons he claimed so many years after his work for the UNP had ceased.
In any event, even if the arrest warrant document and the airport letter were genuine they suggested nothing more than that he would face prosecution for the offence of defamation or criminal defamation. Such prosecution is under laws which apply to everybody. The Tribunal was not satisfied that there was any credible evidence that Mr Fernando would be treated differently from anyone else if charged under those provisions. It accepted information that the Sri Lankan judiciary is independent and that courts have dealt with similar charges. In the end, the Tribunal was not satisfied that Mr Fernando was a person to whom Australia had protection obligations under the Refugee Convention.
There is nothing in the material that has been put before me on behalf of Mr Fernando and nothing apparent from the reasons of the Tribunal to suggest that there is any basis for setting aside its decision on a ground under s 476 of the Migration Act.
Unfortunately, it appears likely that Mr Fernando like, no doubt many others, has not had advice or does not understand the limits of what this Court can do in relation to Tribunal decisions. His application must be dismissed.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate:
Dated: 14 April 1999
Counsel for the Applicant: The Applicant appeared in person and spoke through an Interpreter Mr Rajadurai Counsel for the Respondent:
Mr G.T. Johnson and Ms A Nanson
Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 14 April 1999 Date of Judgment: 14 April 1999
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