MZRAE v Minister for Immigration

[2005] FMCA 40

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZRAE v MINISTER FOR IMMIGRATION [2005] FMCA 40

MIGRATION – Appeal from Refugee Review Tribunal decision – refusal of a protection visa – well founded fear of persecution – imputed political opinion – no reviewable error found.

Judiciary Act 1903 (Cth), s.39B
Migration Act1958 (Cth), s.474

Minister for Immigration and Ethnic Affairs v Rajalingam (1999) 93 FCR 220

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184

Applicant: MZRAE

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: MZ 827 of 2003

Delivered on: 24 January 2005

Delivered at: Melbourne

Hearing date: 20 July 2004

Judgment of: Bennett FM

REPRESENTATION

Counsel for the Applicant: Mr Gibson

Solicitors for the Applicant: Wimal & Associates

Counsel for the Respondent: Mr Heerey

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs of, and incidental to, the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 827 of 2003

MZRAE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Proceedings

1. This is an application under Section 39B of the Judiciary Act 1903 (Cth) for writs of prohibition and certiorari and for a declaration in relation to a decision of the Refugee Review Tribunal (“the RRT” or “the Tribunal”) made on 26 June 2003 and handed down on 18 July 2003.

2. The applicant, who is a citizen of Sri Lanka, arrived in Australia on

   
   

   28 August 2000.  She lodged an application for a protection (classXA) visa with the then Department of Immigration and Multicultural Affairs under the Migration Act 1958 (Cth) (“the Act”) on 7 September 2000. The application for a protection visa was refused by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs on 7 March 2001. On 16 March 2001 the applicant applied for review before the RRT. The RRT affirmed the delegate's decision not to grant the applicant a protection visa.

3. The proceedings were commenced in this Court on 31 July 2003 and an amended application was filed on 29 October 2003. The applicant relies on the application as amended in which it is claimed that the Tribunal fell into jurisdictional error in that it failed to deal with, and ignored, the applicant’s claim that she faced a well founded fear of persecution on grounds of imputed political opinion by reason of her past and continuing profile as the sister of a deceased hero of the Liberation Tigers of Tamil Elam (“LTTE”), alone, or compounded by her status as a vulnerable young adult woman.

4. There was no issue before me as to the Tribunal’s description of the relevant legislation or definition of a refugee.

5. There was no issue before me as to the accuracy of the factual claims made by the applicant which appear at pages 5 to 11 of the Tribunal’s reasons [CB127-133].

6. In very brief compass:

   a)the applicant was 29 years old when this matter was considered by the Tribunal in  2003. She is Tamil born in Jaffna. She was one of twins and her twin brother was Rajeswaran.

   b)She lived with her family in Chulipuram, just to the north of Jaffna, until 1994.

   c)From 1989 or 1990 her twin brother was active in the LTTE. He did not live with his family and what contact he had with them was clandestine.

   d)In 1990 her father left their home and migrated to Canada; a brother followed in 1991.

   e)In 1994 she, her mother and remaining siblings (save for Rajeswaran) moved to Colombo. In 1995 her mother and all her other siblings, save for her twin brother, migrated to Canada. On my calculation, the applicant would have been 21 years old at the time of her family’s departure. The only family members who remained in Sri Lanka at that time were a grandmother in Jaffna and her twin brother. After her mother’s departure from Sri Lanka the applicant lived in a hostel in Colombo and received financial support from her mother in Canada.

   f)In May 1995 the applicant was arrested and detained in Colombo on suspicion of Tamil terrorist activities. The applicant did not reveal to the authorities that she was the sister of a Tamil fighter and it was not raised by the authorities with her. The applicant said that she was interviewed in a threatening, intimidating manner, that she was physically examined and groped and asked questions about  her family, her education, about having lived in Jaffna, her efforts to migrate to Canada and why she was in Colombo. It appears that the authorities sought an order to extend the period of her detention but she was released after a lawyer was retained to act on her behalf. She had been detained for five days.

   g)In 1996 the applicant applied to migrate to Canada. That application was refused, she said, because she failed to disclose the existence of Rajaswaran in Sri Lanka (which was otherwise known to the Canadian authorities) and she was over 18 years of age.

   h)In April 1996 the applicant boarded with a family in which the husband was a Sinhalese police officer. She suspects that the husband reported her to the police. In the event, she was arrested on 17 September 1996 and detained for seven days. The applicant was interrogated by the Criminal Investigation Bureau again in a threatening and intimidating manner and she was assaulted. She was accused of being a LTTE operative and of having lied about going to Canada. She was again physically examined for scars or links to weapons training, photographed and paraded before a masked man and produced at a hearing before a magistrate who authorised her detention. A lawyer was retained but could not secure her release. Her release was eventually secured by a group engaged by her parents, named Home for Human Rights. It is apparent that the police still did not link her to her twin brother, Rajeswaran.

   i)At all times the applicant was subjected to routine checking and questioning, as is very common in Colombo. Following her release from detention in September 1996 the applicant moved back to Jaffna and she resided with her grandmother.

   j)

   In 1998 the applicant’s grandmother died. Her grandmother’s death was the last occasion on which she saw Rajeswaran. On

   
   

   27 October 1999 her twin brother committed suicide while in detention in Mannar. He died a hero of the LTTE and was subsequently honoured.

   k)Consequent upon her brother’s visit to Jaffna in 1998, it became apparent to the villagers that the applicant had not been truthful when she told them that all her family apart from her mother resided in Canada. She began to feel that enquiries were being made about her. On 2 December 1999 the army came to her house in Jaffna and questioned her about her family and Rajeswaran who died in Mannar. Her house was searched and she was molested by officers until her cries alerted neighbours. Thereafter she returned to Colombo where she stayed in the home of elderly family friends for eight months prior to her departure from Sri Lanka. In Colombo interim, she generally did not leave her hosts’ home unless escorted.

   l)In April 2000 the applicant applied for a visa to visit Australia which was not granted.

   m)The applicant entered Australia on 28 August 2000 on a lost or stolen Canadian passport on which a visa to enter Australia was recorded. Subsequently, the applicant produced documents to verify her true identity.

7. The applicant contended that the evidence before the Tribunal supported a claim for the applicant that she feared that the authorities will harm her if she were to return to Sri Lanka because she is the sister of an LTTE cadre. Furthermore, that even being from Jaffna will mean that she will be regularly searched and interrogated and harmed.

8. The Tribunal incorporated into its reasons a significant amount of country information concerning:

   a)the LTTE; this included violence and torture against, and perpetrated by, the LTTE, detention of suspected LTTE operatives or affiliates or those “who have a relative known to be a LTTE member”,

   b)random and extensive security checks to which all persons are subjected;

   c)government treatment of failed asylum seekers;

   d)the peace process and cease fire between the Sri Lankan authorities and the LTTE consequent on the change of government in 2001;

   e)the lifting of the ban against the LTTE; and

   f)the practical position of young women in Sri Lanka.

9. It is apparent from the Tribunal’s reasons that it had sought and obtained proof of the veracity of the applicant's claims about her tewo periods of detention. This was clearly in the context of the Tribunal having doubted some aspects of the applicant’s evidence at the hearing.

10. The Tribunal found that evidence given by the applicant, to the effect that she had not been able to obtain a copy of Rajeswaran’s death certificate without drawing the adverse attention of the authorities to herself, to be “unconvincing”. However that issue was not sought to be verified. Instead, the Tribunal found that “this is not material to the matter on which I need to decide”.

11. In the event, it appears that any aspect about which the Tribunal did seek independent verification of the applicant’s claims, the applicant’s claim was verified.

12. The Tribunal found that, apart from security checks and questioning of a routine nature, the applicant was not the subject of any targeted attention by the security forces on account of any political reason :

    ·until May 1995 (when she was 21 years old and by which time her mother and family had migrated to Canada. Rajeswaran had been a LTTE member or operative of the LTTE for five years – although the Tribunal accepted that the link between the applicant and her brother had not been made by the authorities);

    ·from late May 1995 to her arrest on 17 September 1996 (18 months); and

    ·from late September 1996 onwards –

    and that the “last episode of the applicant being questioned in custody was some four years before she left the country”.

13. The Tribunal accepted that the applicant was out of her country. It appears that the Tribunal may also have accepted that the applicant genuinely feared persecution and, similarly, that the persecution was for reasons enumerated in the Refugees Convention and the Refugees Protocol, namely membership of a particular social group or political opinion. Ultimately, the Tribunal was not satisfied as to the fourth requisite element to the Convention definition of a refugee. That is, that her genuinely held fear of persecution for political reasons was not founded upon a “real chance” of persecution for those reasons. The Tribunal’s findings in this regard appear at pages 20-22 of the reasons [CB142-4] as follows:

    The applicant experienced harassment and routine questioning and was twice detained and questioned.  This appears to have been done to her in an intimidating manner and to have involved some physical harassment of a sexual kind.  In my view, being questioned about one’s identity and one’s whereabouts at various times and the reasons for being where one is or has been is not conduct which is persecutory: the Sri Lankan authorities are entitled to check in order to attempt to secure the population from terrorist attacks.  Unfortunately, it is the LTTE which has undertaken terrorist attacks and so it has been Tamils who have been likely to face questioning and investigation in this regard.  It is what happens to a person once they are in custody which can be conduct properly regarded as persecutory: there has been a high incidence of torture of detainees during interrogation, particularly of people detained for some days or longer.  I note that the last episode of the applicant being questioned in custody was some four years before she left the country.

    I have considered whether there is a real chance that the applicant could face serious harm for a Convention reason if she were to return to Sri Lanka in the reasonably foreseeable future.

14. Counsel for the applicant described the gist of his argument as being that, on any view of the facts which included the applicant’s twin brother having died a hero of the operational military arm of the LTTE cause, this case raised imputed political opinion as a Convention reason but that the Tribunal failed to deal with the applicant’s case on that basis.

15. Counsel for the applicant conceded that the applicant’s case was not articulated thus before the Tribunal but, in summary, says that the ground should have been apparent to the Tribunal and have been dealt with by the Tribunal.

16. Counsel for the applicant submitted that:

    a)the Tribunal’s express failure to further investigate or make a finding about the applicant’s allegation of the reasons why she was not able to access a copy of her brother’s death certificate, and

    b)the Tribunal’s preference for country information which was of a general nature, in that it pertained to Tamils or LTTE members but not the close relatives of senior operatives of the terrorist war against the government, meant that the imputed political opinion aspect of the applicant’s case was not dealt with by the Tribunal with the effect that the Tribunal fell into error of a jurisdictional nature.

17. Counsel for the applicant expressed no difficulty with the Tribunal’s examination and adverse findings in relation to ethnicity or associated (imputed) political opinion insofar as the latter was confined to being a Tamil from the North.

18. I think that it is fair to summarise the applicant’s case as being that the Tribunal failed to identify and deal with the alleged Convention reason of political opinion imputed to the applicant by virtue of the closeness of her relationship with Rajeswaran who, significantly, had not merely been a political operative or member of the LTTE but who died a high profile military operative of the LTTE and who, presumably, would have perpetrated or directed the execution of highly prejudicial attacks upon government forces (and be comprehended by the relevant authorities to have done so).

19. In submissions, the applicant’s case was that Rajeswaran had “a particularly unique profile attaching to people who were field commanders in the LTTE”.

20. The Tribunal described the applicant’s evidence about the reason why she could not obtain a copy of her brother’s death certificate at page 9 of the reasons [CB131] as follows:

    The applicant claims that while in Colombo she tried to obtain the death certificate for her brother to demonstrate to the Canadian High Commission that she had no relatives in the country.  It is claimed that she learned ‘that investigations related to that incident were not over and intelligence itself was awaiting who and on whose behalf application for death certificate would be made, to make inquiries with them about him’.  I asked her about this at the hearing.  She said that she had tied to obtain the certificate but she could not go because the office was in an army area.  I asked if her lawyer could have obtained the document and she said it was not easy and that he could have faced trouble.

21. It was submitted on behalf of the applicant that the Tribunal’s failure to pay sufficient regard to the applicant’s assertion as to why she had been unable to obtain a copy of her brother’s death certificate effectively deprived the applicant an opportunity to demonstrate the jeopardy in which she would be placed if the Sri Lankan government was able to link her to Rajeswaran, was very much a live issue in 2000.

22. The country information relied upon by the Tribunal included the following:

    The LTTE has opened a political office in a government-held area in April 2002 and is allowed to engage in political activity in areas outside their control provided they are unarmed and out of military-style uniforms.  LTTE leaders have appeared in public and spoken at public occasions and banning of the organisation has been lifted (Sri Lanka assessment, cited above paras 4.36 – 4.84).

23. It was the applicant’s case that reliance by the Tribunal on the above country information (as well as other general country information) demonstrated that the Tribunal dealt with political opinion imputed to the applicant only because she was a Tamil and that the Tribunal did not specifically or directly or implicitly or impliedly deal the applicant’s political profile/opinion imputed by reason of her relationship with “a senior field commander of the LTTE”.

24. The applicant conceded that the Tribunal did, in fact, deal with the discrete issues of women in Sri Lankan society, young women, failed asylum seekers, Tamils and LTTE members generally. The contention is that the Tribunal did not make dispositive findings about the applicant’s political profile/opinion imputed by reason of her relationship with her twin brother. It was put that a determination by the Tribunal of the applicant’s imputed political opinion/profile was a component integer of the applicant’s claim as a refugee.

25. I accept that political opinion/profile imputed to the applicant by virtue of her close familial links with her brother was a component integer of the applicant’s claim as a refugee.

26. I accept that if the Tribunal failed to address some specific and probative evidence relevant to political opinion/profile imputed to the applicant by virtue of her close familial links with her brother, then that may raise the inference that the Tribunal did “not ask itself the right question” and failed to take that particular integer of the applicant’s claim into account as a relevant consideration.

27. I accept that if I was ultimately satisfied that the Tribunal did not address the integer of the applicant’s claim, then the Tribunal would have committed an error which is jurisdictional in its nature with the result that the decision under review would have been made without jurisdiction.

28. If the decision is made without jurisdiction, I accept that it is not a decision made “under the Act” for the purpose of Section 474 of the Act: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (4 February 2003) per Gaudron, McHugh, Gummow, Kirby and Hayne JJ at 45-6 [74]-[78] with the effect that it is reviewable by this Court.

29. Counsel for the respondent referred me to certain parts of the Tribunal’s decision from which it is apparent that the Tribunal considered political opinion or profile which could be imputed to the applicant from her close relationship with Rajeswaran. The decision included that at page 21(which is extracted above):

    I have been mindful that what she claims to have experienced in the past at the hands of the security authorities occurred when they were unaware, or later uncertain, of her family relationship to a committed LTTE member who died in the course of his involvement. [CB144]

    It is clear that the Tribunal’s consideration in this regard was in the context of the Tribunal’s assessment of whether that applicant could face serious harm for a Convention reason if she were to return to Sri Lanka in the foreseeable future.

30. Also at page 21, the Tribunal makes the following comments:

    I note that before the ceasefire I probably would have found that there was a real chance that the applicant could face persecution on the basis of her ethnicity and an associated political opinion or because of her membership of a particular social group defined as Rajeswaran’s family ….[CB144]

31. It is somewhat curious that the Tribunal referred to Rajeswaran’s family as a “social group” when the evidence before the Tribunal was to the effect that whatever contact the applicant had with her brother had been clandestine or consequent upon the death of their grandmother. However, whether or not the Tribunal regarded Rajeswaran’s standing within the LTTE as highly as was put by the applicant in counsel’s submissions, I am satisfied that the Tribunal did have an appreciation and acceptance of him as a front line soldier in the LTTE cause. That is accessible from the Tribunal’s reference to him as “a committed LTTE member who died in the course of his involvement” and the following references by the Tribunal to the applicant’s claim in these terms:

    There is an undated newspaper article which records that ‘Tigers have announced’ the deaths of six people.  One is named Major Kumaravel (Sivakkolundu Rajeshvaran of Jaffna) during a clash in the Mannar area.  Another article is from a Tamil newspaper published in Canada and dated 9 November 1999: it records the death on 27 October 1999 of Sivakkolundu Rajeshvaran, alias Captain Kumaravelu of Chilipuran East.  It states that he swallowed cyanide when he was surrounded by the military.

    In a submission provided to the delegate after the interview, the applicant’s adviser submitted that her family members here and in Canada have been ‘invited by the Tamil Co-ordinating Committee (representing LTTE) to pay homage to their brother’s sacrifice, along with the public, during 1999 and 2000 Heroes Day celebrations conducted in Melbourne and Toronto.

1. Counsel for both parties referred me to WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 (15 August 2003). In that case the Full Court of the Federal Court, comprising French, Sackville and Hely JJ, stated:

   The effect of the decision of the High Court in Plaintiff S157 is that s 474 of the Migration Act does not operate to bar judicial review of decisions under the Act where jurisdictional error is alleged. The debate on the hearing of this appeal understandably therefore focussed on the issue raised by the Notice of Contention namely whether there was jurisdictional error on the part of the Tribunal.

   Section 414 of the Migration Act requires that, if a valid application is made under s 412 for review of an RRT-reviewable decision, the Tribunal must review the decision. There was in this case a valid application for review of an RRT-reviewable decision.

   The Tribunal is empowered by s 415(1) of the Act `for the purposes of the review of an RRT-reviewable decision' to `exercise all the powers and discretions that are conferred by this Act on the person who made the decision'. The Tribunal may, under s 415(2), affirm the decision, vary it, remit it for reconsideration or set it aside and substitute a new decision. If the Tribunal fails to discharge the obligation to review the decision and then purports to affirm it the decision to affirm it would be vitiated by jurisdictional error.

   It is central to the exercise of the dispositive powers conferred by s 415 that the Tribunal has first conducted a review. That is to say it must have considered the application which is the subject of review in light of the information, evidence and arguments which are relevant to the application and which are provided to it or which it obtains for itself. So much is contemplated by ss 423, 424, 425 and 426 of the Act.

   In conducting its review the Tribunal must have regard to the criteria for the grant of a protection visa and in particular the criterion that the applicant for a visa is:

   `... a non-citizen in Australia to whom the [Tribunal] is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol;' (s 36(2)(a) read with s 415(1))

   The critical question which ordinarily will have to be addressed in applying this criterion is whether the applicant has a well-founded fear of persecution for one of the Convention reasons. If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty, imposed by s 414, to conduct a review of the decision. This is a matter of substance, not a matter of the form of the Tribunal's published reasons for decision.

   It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised `with an eye keenly attuned to error'. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

   The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

   I accept, with respect, all of the above statement of law with particular regard, in this instance, to the statement that the inference of jurisdictional error ought not to be drawn too readily where the Tribunal’s reasons are “otherwise comprehensive and the issue has at least been identified at some point”.

2. The respondent contended that the applicant’s claim had been met by the Tribunal in all respects and that no error of law or jurisdictional error had been established. I accept that submission.

3. The applicant’s further criticism was that the Tribunal preferred country information of a general nature to the specific allegations made by the applicant about her particular circumstances (including in relation to the death certificate that the Tribunal failed to seek to authenticate). The respondent contended that the Tribunal had found the ceasefire, entered into in February 2002, to be “pivotal”. In particular, the Tribunal was required to make its determination on the basis of the applicant’s fear of persecution for a Convention reason as at the date of its decision (1993) rather than as at the date of the applicant’s departure from Sri Lanka (1990) and, in so doing, the Tribunal was entitled, if not required, to have regard to the ceasefire entered into by the government and the LTTE in February 2002.

4. The applicant agreed that the objective test of whether any genuinely held fear of persecution is well founded, was to be as at the date of the decision and hence, necessarily, having regard to changes that have taken place since the applicant left the country.

5. I find that the Tribunal’s findings in this regard are to the effect that the ceasefire of 2002 effectively negated much, if not all, of the basis upon which any fear held by applicant could be realistically based. This is supported by the reference by the Tribunal to the country information which dealt with the effect of ceasefire and reservations by Amnesty International Australia as to the likely longevity of the ceasefire and, then, by the Tribunal’s observation that, prior to the ceasefire, the applicant may well have succeeded on this ground in the following terms:

   I note that before the ceasefire I probably would have found that there is a real chance that the applicant could face persecution ….[CB143]

6. The Tribunal made a finding of fact on the evidence. I find that what the applicant seeks to attribute to the Tribunal as errors of law or jurisdiction are, in fact, criticisms of the Tribunal for failing to make the findings of fact that the applicant wanted to be made on the evidence. It is not sufficient that this Court might have taken a different view of the likelihood of conduct amounting to official persecution of the applicant as the sole surviving family member of a Tamil military hero in Sri Lanka. It is not sufficient that this Court may take a different view on whether “being questioned about one’s identity and one’s family, one’s whereabouts at various times and the reason for being where one is or has been is not conduct which is persecutory” even when such questioning was “done … in an intimidating manner and .. involved some physical harassment of a sexual kind” and involved two periods of detention totalling 12 days, such as was involved in this case.

7. I conclude that the Tribunal’s findings of fact were open to it on the materials before it. Furthermore, this Court is not invested with the same fact finding responsibility or powers as the Tribunal and, in the absence of jurisdictional error, it is not for this Court to interfere with the Tribunal’s preference for, or weighing of, the evidence before it. As the Honourable Justice Kenny observed in Minister for Immigration and Ethnic Affairs v Rajalingam (1999) 93 FCR 220 at para 146 –

   “A tribunal such as the RRT does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound or unreasonable reasoning: see See Minister for Immigration and Multicultural Affairs v Eshetu (unreported, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ, 13 May 1999) [1999] HCA 21 at paras 40, 44-45 per Gleeson CJ and McHugh J, 138 per Gummow J and cf para 159 per Hayne J; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason CJ with whom Brennan J at 365, Deane J at 369 and Toohey and Gaudron JJ at 387 agreed; Roads Corporation v Dacakis [1995] 2 VR 508 at 517-520; Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 160 ALR 543 (FC).

8. The respondent contended that it was of no consequence that the Tribunal did not seek to authenticate or make a finding about the reasons why the applicant could not apply for a copy of her brother’s death certificate. It was submitted, and I accept that the Tribunal was satisfied that the authorities would recognise the link between the applicant and her deceased twin if she returned to Sri Lanka. I also accept the respondent’s submission that, given the extent to which the Tribunal accepted that the 2002 peace talks and consequent ceasefire so altered the relationship between the government and the LTTE, that it was neither necessary nor relevant for the Tribunal to make dispositive findings about the death certificate allegation. That is not to say that this Court may not have come to the same conclusion as the Tribunal in relation to the effect of the peace talks. However, the significance and effect of the peace talks are findings of fact made by the Tribunal with which this court is neither empowered nor responsible to interfere in the absence of jurisdictional error and, for the reasons that I have set out above, I find that there is no jurisdictional error in this case.

9. In the circumstances, I will dismiss the application.

10. I am satisfied that an order for costs should be made. In the circumstances of this matter, I will order that the applicant pay the respondent’s costs and disbursements of and incidental to the application, which I fix after hearing from the parties in the event that they are unable to agree on quantum.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Bennett FM

Associate:  Jessica Beck

Date:  24 January 2005