Gunatunga, Deepani Upeksha v Minister for Immigration & Multicultural Affairs

[1998] FCA 500

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG1083 of 1997

BETWEEN:	DEEPANI UPEKSHA GUNATUNGA AND SUSIL CHITHRALAL GUNATUNGA Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE	WILCOX J
DATE:	7 MAY 1998
PLACE:	SYDNEY

EXTEMPORE REASONS FOR JUDGMENT

WILCOX J:  This is an application for review of a decision of the Refugee Review Tribunal involving two applicants, Deepani Upeksha Gunatunga and Susil Chithralal Gunatunga. The application concerns a decision of the Tribunal given on 18 November 1997 affirming a decision to refuse the applicants protection visas. The Tribunal was not satisfied they were persons to whom Australia had protection obligations under the Refugees’ Convention, as amended by the Refugees’ Protocol, and accordingly was not satisfied they came within s 36(2) of the Migration Act 1958.

The application for an order of review was filed by the applicants personally.  Mrs Gunatunga, who appeared today on behalf of herself and her husband, informed me the application was prepared by them without professional assistance but with the help of friends.  If that is so, I can only comment that the friends were well versed in the relevant law because the application is competently prepared and sets out a number of grounds that, theoretically at least, would be available in a case such as this.  

Mrs Gunatunga was not able to put before me any developed argument in support of any of the grounds or to provide reasons for interfering with the decision of the Tribunal.  Her knowledge of legal procedures is obviously limited and I appreciate the difficulty under which she has been labouring.  Having regard to this situation, I have given consideration to the grounds raised in the application.  In doing that, I have had the benefit of considering the written submission that was provided to the Court by counsel for the respondent.  I have reached the conclusion that there is nothing before the Court to indicate the availability of any ground of review under s 420 or s 476 of the Migration Act.

The first ground alleges that procedures required by the Act to be observed in connection with the making of a decision were not observed.  This ground is particularised by complaining that the Tribunal failed to act according to substantial justice and the merits of the case, and/or failed to make findings on material questions of fact, in that it failed to make findings in relation to three matters.

The first matter is an alleged failure to make findings concerning, or address the substance of that part of the applicant's case for review which relied upon, the fear of persecution by the authorities in Sri Lanka.  The second ground is similar but refers to a fear of persecution caused by the authorities in Sri Lanka which were communicated to them and the third involves a fear of persecution arising from their connection with the UNP.  The UNP is the United National Party, a political party that was apparently in power in Sri Lanka until the 1994 elections. 

In relation to that last matter, I note the Tribunal referred to the fact that Mrs Gunatunga stated at the hearing she did not fear to return because of an incident that had occurred shortly after the election, when a vehicle in which she and her husband were riding was burnt.  She commented that this incident was over and she did not believe it would be repeated.  It seems that the case put to the Tribunal had nothing to do with the applicant's support of the UNP but, rather, later events when she made allegations against a government Minister and other people in her capacity as a member of an organisation called “Country Life Society”.  It seems to me the allegation that the Tribunal failed to address the fear arising out of connection with the UNP is misconceived.

In relation to the other particulars, I can only say the Tribunal's reasons deal with the claims made to it.  A fundamental problem for the applicants is that the Tribunal felt unable to accept many of the factual claims that were made.  In substance the Tribunal disbelieved allegations about problems that had occurred to the applicants and people associated with them.  As I endeavoured to point out to Mrs Gunatunga, findings of fact are for the Tribunal and not the Court.  I do not see any basis for concluding that the Tribunal failed to act according to substantial justice and the merits of the case or failed to make material findings of fact.  On the contrary, so far as I can see, the Tribunal addressed all the matters that were raised and made findings.  As I say, the correctness in terms of fact is not for me to determine. 

The second ground of the application is that the decision involved an error of law.  The error is particularised as being a misinterpretation of the definition of refugee, or misapplication of that definition to the facts as found, in that the Tribunal did not consider the definition required that consideration be given to the cumulative effect of the various fears of persecution held by an applicant for refugee status.  Somewhat inconsistently, the second particular complains that the Tribunal failed to consider each separate aspect of the claim.

It seems to me this allegation also has no substance.  At the commencement of its reasons, the Tribunal set out in unexceptional form a summary of the relevant law.  The Tribunal then recounted the claims made and the evidence in support and, as I have said, at the end of the day found itself unable to accept much of what had been put before it.  Indeed it is fair to say that the Tribunal was quite unconvinced that the applicants had been subjected to persecution or harassment on account of their membership of any group.  This is the reason why the application for refugee status failed; not, I think, because of any misunderstanding of the law. 

I see no basis upon which the Court can intervene in the Tribunal's decision.  The application for review must be dismissed and I so order.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox

Associate:

Dated:            7 May 1998

Applicant in person
Counsel for the Respondent:	Frances Backman
Solicitor for the Respondent:	Australian Government Solicitor