Ousmand v Minister for Immigration and Multicultural Affairs

[2000] FCA 247

FEDERAL COURT OF AUSTRALIA

Ousmand v Minister for Immigration & Multicultural Affairs [2000] FCA 247

ROHAN THUNKU OUSMAND v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1261 OF 1999

LEHANE J
28 FEBRUARY 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1261 OF 1999

BETWEEN:	ROHAN THUNKU OUSMAND APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	LEHANE J
DATE OF ORDER:	28 FEBRUARY 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for judicial review be dismissed.

2.        The applicant pay the respondent’s 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 1261 OF 1999

BETWEEN:	ROHAN THUNKU OUSMAND APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	LEHANE J
DATE:	28 FEBRUARY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Before me is an application for review of a decision of the Refugee Review Tribunal dated 7 October 1999 by which the Tribunal affirmed the decision of a delegate of the Minister to refuse the applicant a protection visa.  The applicant is, according to the facts found by the Tribunal, a national of Sri Lanka.  He is a Muslim.  He arrived in Australia on a visitor's visa in March 1996.

2. The applicant made claims which may be summarised in this way.  He feared, as a result of associations of members of his family with the Tamil community, that he would, in the minds of the Sri Lankan authorities, be associated with that community.  He also made particular claims about an explosion outside the offices in Colombo of the Hatton National Bank (by which he was employed) and the aftermath of that explosion.  He claimed to have been injured in the explosion while in company with a Tamil fellow employee of the bank.  He claimed that, after treatment in hospital, he was detained and interrogated and, in circumstances which he described, was and remained the subject of interest on the part of the police.

3. The applicant had already, before the explosion, lodged an application for a visitor's visa with the Australian High Commission and later left Sri Lanka without hindrance on papers validly obtained in his own name, and came to Australia.

4. The Tribunal examined in considerable detail those claims of the applicant and associated claims: for example, that because of his association with Tamils he had been prejudiced by what were described as whispering campaigns in the course of his employment.  The Tribunal's conclusion was that it did not accept the evidence given by the applicant.  The Tribunal referred to a number of considerations which led it to this conclusion, including but by no means limited to the way in which the applicant gave evidence before the Tribunal.

5. My impression, on reading the Tribunal's reasons carefully, is that it was well justified on the material before it in reaching the conclusion which it did; I can see no ground upon which to conclude that the Tribunal made an error as to the facts or the merits, let alone an error of a kind which is reviewable under Pt 8 of the Migration Act 1958 (Cth). Those considerations would inevitably lead to the dismissal of the application for judicial review.

6. There is, however, a complicating factor.  The applicant was represented until today or possibly, depending on the view one takes of the events, late last week by solicitors and counsel.  Counsel appeared for the applicant at the first directions hearing and evidence given by the solicitor acting for the Minister makes it clear that solicitors and counsel continued to act until at least some time last week.  Directions, however, in the usual form for the filing of submissions were not complied with and by the end of last week, the evidence establishes, it was plain that there would be no submissions and ultimately that the lawyers would seek to withdraw.  Counsel attended this morning and announced his appearance for the applicant, but his role in the proceedings was in fact rather to seek leave on behalf of the applicant's solicitors, or it may be former solicitors, to withdraw. 

7. There was in the circumstances nothing in my view to be gained by refusing leave, at least, for counsel to withdraw and I gave that leave.  That had the extremely unfortunate result that the applicant was left without legal representation before me.  In those circumstances, he sought an adjournment.  Commonly, in circumstances such as these, one would grant an adjournment at least for a brief period.  In the circumstances of the present case, however, I declined the application for the adjournment for reasons which I shall now shortly explain.  First (and perhaps of less than overwhelming importance), there was no evidence whatever of the circumstances of the withdrawal of the solicitors and counsel, particularly of the withdrawal of the solicitors very much at the last moment.  It is plain from the evidence given by the solicitor for the Minister that they regarded themselves as having some instructions, at least until some time late last week.  It was only on Friday afternoon, and relatively late on Friday afternoon, that the solicitors finally announced their intention to discontinue acting.  How that came about is simply unexplained. 

8. Secondly, however, and more importantly this is a case where in my view it is plain on the material before the Court that nothing would be gained by an adjournment.  It is a clear case where the Tribunal has reached its decision solely and simply on the basis of its assessment of the evidence.  The application for judicial review stated grounds of review but none of the grounds is particularised and I am unable to see on the material before me how the grounds could be particularised.  The Tribunal's statement of the applicable law is unexceptionable and it proceeds then to examine the facts and claims with great care, in considerable detail and a manner in which I can see no error of any kind.

9. It is in those circumstances particularly that, in my view, no purpose would be served by an adjournment: which, for that reason, I refused.  The result, accordingly, of the reasons which I have already given is that the application for judicial review should be refused.  The Minister seeks costs.  There is, I think, no reason why the usual course should not be followed; thus the orders of the court are that:

   1.The application for judicial review be dismissed.

   2.The applicant pay the respondent’s costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane.

Associate:

Dated:             10 March 2000

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	28 February 2000
Date of Judgment:	28 February 2000