Nirmalan v Minister for Immigration & Multicultural Affairs

[1997] FCA 1619

JUDGMENT No. d6i.Z..

IN THE FEDERAL COURT OF AUSTRALIA	)
NEW SOUTH WALES DISTRICT REGISTRY	) No. NG 1032 of 1997
GENERAL DIVISION	1

Between: PATHMANATHAN NIFUWALAN

Applicant

And :	MINISTER FOR IMMIGRATION
AND MULTICULTURAZ, AFFAIRS

Respondent

REASONS FOR JUDGMENT

EINFELD J SYDNEY 19 DECEMBER 1997

The applicant seeks an order for review of a decision of the Refugee Review Tribunal made on 28 July 1997. The applicant appears for himself in these proceedings and his application for order of review is handwritten. Attached to it is a typewritten document which represents what appears to be something very

similar to the substance of the submission made to the Refugee Review Tribunal. It was not the submission itself that was made there and is in fact a commentary on the Tribunal's decision but it contains a number of matters similar to those put to the

Tribunal at its hearing.

The application for an order of review was that the Tribunal had made what was described as "an unfair decision". It was alleged that the Tribunal failed to take the applicant's evidence into its account, denied him natural justice, and made certain other

errors which are presented as if they were errors of law but in fact represent a challenge to various findings of fact. The application was supplemented by a motion seeking an order that

the applicant's removal from Australia be stoppp3-"1Tflt4~ his b.

appeal could be heard and for similar orders. A$., > ' "*it

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The respondent Minister objected to the ap&icat.ion on t8e .,.i,.:.p?*:.! I S?!

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grounds that it was not filed within 28 days o\$he ap&nt

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being notified of the decision. The Minister pointed to the fact

that the legislation now prevents the Court from extending that time. Accordingly, it was asserted that the Court has no jurisdiction in relation either to the application or the motion.

When the matter was first listed for hearing in this Court on 12 December 1997, I pointed out to Mr Pathmanathan that it was in the circumstances not possible for the Court to hear the matter even if his assertions in relation to the failings of the Tribunal were correct because of the fact that it was substantially out of time. I have in this connection read the material upon which he wishes to rely in relation to the delay which is all set out in another affidavit in typewritten form. I call it an affidavit; it is dated 11 December but the copy in the file has not actually been signed. I have assumed, however, that it represents the evidence upon which the applicant wishes to

rely in relation to the extension of time.

I explained to Mr Pathmanathan that the Court had no power to grant an extension of time and the only course that might be open to him is an application to the High Court. As I am now informed, no such application has been made but the applicant has

presented to the Court today by fax an affidavit dated 18 December which is in typewritten form. It sets out the grounds of his application which are not dissimilar to, but are a little more particular than, those made in the original application. In the new affidavit he says that procedures required by the Migration Act were not observed in that the Tribunal failed to consider the matter according to substantial justice and the merits of the case, a requirement of section 420 of the Migration Act.

The particulars given in this regard are that the Tribunal failed to make findings in relation to and address the substance of that part of his case for review which relied upon his fear of persecution by the authorities in Sri Lanka. The second allegation is that the Tribunal failed to make findings of a similar kind and on the same subject. There is a reference there to something he did in 1997 in Sri Lanka but in fact the applicant has not been in Sri Lanka for very many years so I presume that he meant 1987.

The third ground is that the Tribunal failed to make findings on the fear of persecution arising out of events that he raised before it and are raised in his submissions concerning his involvement with the Tamil Separatist organisation, the

Liberation Tigers of Tarnil Eelam (LTTE) . The affidavit of yesterday also alleges an error of law in that the Tribunal either incorrectly interpreted the applicable law or incorrectly applied the law to the facts.

The specific assertion is that the Tribunal misinterpreted the definition of a refugee or misapplied the definition to the facts found by it or failed to act according to substantial justice in deciding that he was not a refugee. In turn, the particulars of

that allegation appear to be that it did not consider that the definition required that consideration be given to the cumulative effect of the various fears of persecution that he held; that it did not consider that the definition required that consideration

be given to each aspect of a claim of fear of persecution; that it ignored the fact that he had helped the LTTE which was brought

and came to the adverse attention of the authorities, and also ignored that he had been arrested and kept in detention for 17

days with 8 other Tamils when he was in Colombo by concluding

that he had only been kept and released overnight in what I have assumed to be 1987. He explained that the tension and torture

involved in this type of treatment creates immense fear in the

minds of a Tamil when considering the situation in Sri Lanka.

The Court is, of course, acutely aware of the situation in Sri Lanka and the difficult position in which Tamils have found themselves now for very many years. It is a matter of great regret that in such a lovely country it has been found impossible to bring the current conflict to a peaceful end much earlier than now, and that as a consequence many people have been killed and ill treated and some Tamils in particular live in considerable

fear for their safety from time to time. Of course, Tamils are not the only people in Sri Lanka who are the victims of the long running conflict in that country, but many of them have certainly endured a great deal of suffering and apprehension over the years.

There are, however, two problems with the applicant's application. One is the one I raised early last week, and that is that his application is well out of time and there is no power

for the Court to extend the time. Moreover, the reasons given by

him for any possible extension of time, even if it were

permitted, do not strike me as even beginning to address the reason as to why he did not make his application within time. Thus even if there was a power to extend, it would be very

difficult to exercise it in this particular case upon the grounds

given.

The second problem with the application is that the assertions made by the applicant, although dressed up in legal language, are in fact assertions of fact and not of law. A reading of the

Tribunal's decision shows that a11 of the matters referred to by the applicant were considered by the Tribunal, but for the reasons set out in the Tribunal's decision they were not accepted or at least to the point of creating the type of fear of persecution to which the convention is directed. As I pointed out to Mr Pathmanathan last week, everything that happened to him in this regard happened ten years ago or more. The likelihood

that the same people are in charge of the security forces now as then is extremely remote. Likewise it is my experience of such matters that the record-keeping in most countries where this type of thing occurs is unlikely to be anything like as efficient as would be needed in order to identify him as the same person who had come under what I might describe for present purposes as adverse attention more than ten years ago.

It has been held time and again that for someone to be able to establish a risk of persecution of the kind referred to in the Geneva Convention, it is necessary to establish that the relevant threat is special or particular to the applicant rather than as

might apply to everyone else in the same category of people in the country concerned. As I have earlier mentioned, the situation of Tamils in Sri Lanka is certainly not what is desired or desirable and quite understandably creates considerable concern to them and to the international community. Indeed much effort is being expended to try to address this problem on a day by day basis, internationally as well as within Sri Lanka. But Mr Pathmanathanrs situation, as it seems to me, is unlikely to be any different on his return than applies to everyone else in Sri Lanka, and that is clearly something which the Convention cannot support even if there was a valid application before the Court.

However, as I have said, there is nothing before the Court which can be dealt with. The only Court in this country that can deal with any matter relating to Mr Pathmanathan is the High Court, which may have some constitutional basis for intervention. I mentioned this last week and suggested that Mr Pathmanathan obtain pro bono legal advice if he could not afford a lawyer. It does not seem to have happened and I very much regret that I

cannot extend the matter any further. Accordingly, the

application of review is dismissed.

[After discussion]

l certify that :his and the S I X

I order that the applicant pay the

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f:r .It!c!grnent herein of his Honour i

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