Kumaralingam, Sangaraghandylingam v Minister for Immigration and Multicultural Affairs

[1998] FCA 1625

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 675 of 1998

BETWEEN:	SANGARAGHANDYLINGAM KUMARALINGAM APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		HELY J
DATE OF ORDER:		17 DECEMBER 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The decision of the Refugee Review Tribunal given on 12 June 1998 be set aside.

1. The matter be remitted to the Tribunal for determination according to law.

1. The respondent should pay the applicant’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 675 of 1998

BETWEEN:	SANGARAGHANDYLINGAM KUMARALINGAM APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	HELY J
DATE:	17 DECEMBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HELY J:        The applicant in the present case is the husband of Jacinthadevi Kumaralingam.  I gave judgment in the wife’s case setting aside the decision of the Refugee Review Tribunal (“RRT”), and remitting the matter to RRT for reconsideration according to law.

Each case depends upon its own circumstances, and the facts in the husband’s case are different, in some respects, from those which were established in the case of the wife.  For example, the wife complained of specific acts of mistreatment at the hands of the Sri Lankan army in 1996.  There is no equivalent complaint in relation to the husband.  I found, in relation to those complaints, that RRT erred in its approach to what constitutes persecution for a convention reason.  There is no express repetition of that approach in the reasons for decision relating to the husband.  Nonetheless, as the decisions were given on the same day, it seems reasonable to infer, and I do so, that RRT approached the decision in the husband’s case with the same approach to what constitutes persecution for a convention reason as informed its decision in the case of the wife.  It therefore follows that the decision in the husband’s case was infected by the same legal error.

A factor which is common to the two cases is non disclosure of the DFAT cable of 19 May 1998.  For the reasons which I gave in the wife’s application, it is my view that non disclosure of this cable involved a failure to comply with the requirements of s 420, and the decision of RRT must be set aside on that account.

The only other matter which was the subject of specific oral submission in the husband’s case was a complaint that RRT concluded that the husband’s profile is not such as to bring him to the attention of the authorities without taking into account that he is at risk of persecution because he comes from Valvetturai.

In my opinion, it is clear from pages 4 and 6 of RRT’s reasons that this matter was taken into account, but was outweighed by RRT’s views, based partially on the undisclosed cables, that the greatly improved human rights situation in the area made the applicant’s fear or persecution for a convention reason, not well-founded.

Conclusion

The decision of the RRT of 12 June 1998 is set aside and the matter remitted to the Tribunal for determination according to law.  The respondent is to pay the applicant’s costs.

I certify that this and the preceding one (1) page is a true copy of the Reasons for Judgment herein of the Honourable Justice Hely

Associate:

Dated:             

Counsel for the Applicant:	C Colborne
Solicitor for the Applicant:	L Karp McDonells, Solicitors
Counsel for the Respondent:	N Williams
Solicitor for the Respondent:	S Kavallaris Australian Government Solicitor
Date of Hearing:	16 November 1998
Date of Judgment:	17 December 1998