Gnanasambanther v MIMA

[2000] FCA 1911

FEDERAL COURT OF AUSTRALIA

Gnanasambanther v Minister for Immigration & Multicultural Affairs [2000] FCA 1911

MIGRATION – review of RRT decision – whether the RRT erred by failing to investigate grounds of possible persecution - where those grounds were not advanced before the RRT

Migration Act 1958 (Cth) s 476

Abebe v The Commonwealth (1999) 162 ALR 1 cited
Sellamuthu v Minister for Immigration & Multicultural Affairs (1999) 90 FCR 287 distinguished

GNANASAMBANTHER v
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 972 of 2000

TAMBERLIN J
SYDNEY
22 DECEMBER 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 972 OF 2000

BETWEEN:	KANAGARATNAM GNANASAMBANTHER & PATHMAUATHY GNANASAMBANTHER APPLICANTS
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL  AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	22 DECEMBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The application be dismissed with costs.

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	N 972 OF 2000

BETWEEN:	KANAGARATNAM GNANASAMBANTHER & PATHMAUATHY GNANASAMBANTHER APPLICANTS
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL  AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	22 DECEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for review under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Refugee Review Tribunal (“the RRT”) affirming a decision not to grant a Protection Visa on the ground that the husband and wife applicants are not refugees within the well-known Convention definition. The applicant and his wife are citizens of Sri Lanka. The husband is aged seventy-eight and his wife is aged seventy-two. Three principal bases for review are raised by Mr Rajadurai who was granted leave to appear for the applicants.

2. The first is that the RRT failed to properly investigate the alleged importance of the fact that the applicants had resided in town named Veemankamam in an area claimed to be of high strategic importance in the struggle taking place in Sri Lanka.  The strategic importance was said to arise from the fact that it was located near a harbour and an airport.  The strategic importance of the area is said to give rise to adverse perceptions by opponents of the LTTE as to the applicants’ political associations.  The town was for a considerable period of time under the control of the LTTE.  The submission is that by virtue of the fact of having lived in that town it was important to investigate this matter because it raised a question whether there was a real risk of persecution for a political reason. It is said that once the strategic importance of the town was in evidence then it was incumbent on the RRT to ask whether residence in that town gave rise to a real risk of persecution.  The RRT”s failure to engage in this exercise was said to amount to an error of law.  No submissions were made to the RRT as to the importance of the town or as to the impact of residence in that town.  The proposition is that the RRT itself should have appreciated and investigated the significance of this ground.

3. There is no duty on the RRT to embark on a general inquiry into every aspect of the evidence presented on a refugee application if that evidence is not raised, relied on or advanced by the applicant or the representatives of the applicant.  As Gummow and Hayne JJ said in a Abebe v The Commonwealth (1999) 162 ALR 1 at 51:

   “The proceedings before the tribunal are inquisitorial and the tribunal is not in the position of a contradictor.   It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason.  The tribunal must then decide whether that claim is made out.”

4. The present case is not analogous to Sellamuthu v Minister for Immigration & Multicultural Affairs (1999) 90 FCR 287 because in that case there were “particular things” said to exist that singled out the individual applicant specifically as being more exposed to persecution than other Tamils: see at 292. These circumstances are not shown to exist in the present case.

5. No submissions were made to the RRT as to the importance of the town so that the matter could not be said to have been raised by the applicants or their advisers.  In the absence of such submissions, in this case, the RRT made no reviewable error by not investigating the issue further.

6. The Reasons for Decision of the RRT refer to the applicant’s residence in the town and repeat his assertion that it was of high strategic value.  The RRT did not accept as credible the applicant’s claim that if he were to be returned to Sri Lanka the LTTE would seek to assist him and thereby strengthen his perceived association with that body.  There is no substance in this first ground relied on.

7. The second matter raised for the applicants is that because they were resident in an LTTE-controlled compound then they would be perceived as being associated with and supportive of the LTTE and this would give rise to an imputed political opinion in the eyes of the opposition security forces.  This would, so it is said, place them in danger of persecution by reason of the imputed political opinion.

8. The applicants claim that the only work they did for the LTTE was to help with the cooking and purchase of food, providing accommodation for LTTE members in their home, and accompanying young men to Puttalan.  At the RRT hearing they denied having LTTE members resident in their home and it was not accepted by the RRT that they assisted young men or accompanied them.  The RRT found that the role of the applicants was a minor one with the LTTE.  This of course was a question of fact.  Because of their movement within Sri Lanka the RRT found that they were not of significant interest to the PLOTE security forces.  PLOTE is a militant Tamil group opposed to the LTTE.

9. The RRT did not accept the claims that the applicants had assisted the LTTE in Colombo in any material way.  Nor was it satisfied that the applicants had any contact with the LTTE in Colombo.  The RRT pointed out that the applicants had lived in Colombo for a number of years and had not been arrested, detained or interrogated by the security forces.  They were subject to search operations during which their ID cards were checked but nothing otherwise occurred to them.  There is no evidence of harsh treatment.  The RRT did not accept that the applicants had any basis for fear of persecution by reason of a claimed connection with PLOTE when it was anti-government prior to 1987.  In rejecting this allegation detailed reasons were given for the RRT’s finding that this claim was fabricated.  Credibility findings on a number of significant issues were made against the applicants.  In my view these findings disclose no reviewable error. 

10. Finally, it was also submitted for the applicants that because of health problems in relation to blood pressure, infirmity and old age they would be particularly more susceptible to harm if questioned or detained or otherwise harassed or harmed.  This argument does not really assist the applicants’ case because the central finding of the RRT was that they had not made out a sufficient case that they were of interest to the authorities such as would lead to a real chance of their being persecuted for a Convention reason, namely their imputed political opinion.

11. In my view no reviewable error is disclosed in the reasoning of the RRT or in the approach which it took to the questions raised before it for determination.   Accordingly, the application is dismissed with costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:             22 December 2000

Counsel for the Applicants:	E Rajadurai was given leave to appear for the applicants
Counsel for the Respondent:	S Lloyd
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	15 December 2000
Date of Judgment:	22 December 2000