Paranawithana v Minister for Immigration and Multicultural Affairs

[2001] FCA 941

FEDERAL COURT OF AUSTRALIA

Paranawithana v Minister for Immigration & Multicultural Affairs
[2001] FCA 941

MIGRATION – review of decision of Refugee Review Tribunal – where applicant’s submissions seek to show that the Refugee Review Tribunal attributed too much weight to independent evidence and too little weight to his evidence – whether the Refugee Review Tribunal correctly applied the ‘real chance’ test

Migration Act 1958 (Cth) s 476(1)(e), s 476(1)(g)
Federal Court Rules O 32 r 2

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 referred to
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 followed

JAGATH BANDULA PARANAWITHANA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
V 158 of 2001

STONE J
MELBOURNE
20 JULY 2001

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 158 OF 2001

BETWEEN:	JAGATH BANDULA PARANAWITHANA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	19 JULY 2001
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.the application 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
VICTORIA DISTRICT REGISTRY	V 158 OF 2001

BETWEEN:	JAGATH BANDULA PARANAWITHANA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	STONE J
DATE:	19 JULY 2001
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. On 13 November 1998, the applicant, a citizen of Sri Lanka, applied to the respondent (“Minister”) for a protection visa under the Migration Act 1958 (Cth) (“Act”). The application was refused by a delegate of the Minister on 14 December 1998 and that decision was affirmed by the Refugee Review Tribunal (“Tribunal”) on 17 January 2001.

   DECISION OF THE TRIBUNAL

2. The Tribunal considered the applicant’s claims set out in his protection visa application and his written submissions as well as his evidence given before the Tribunal. The applicant is a Sri Lankan citizen of Sinhalese ethnicity.  Between 1985 and 1991 he worked in Saudi Arabia and between February 1992 and September 1998 he worked in Italy.  During these periods the applicant visited Sri Lanka from time to time. Whilst in Italy, the applicant befriended a Tamil person who introduced him to active members of the Liberation Tigers of Tamil Eelam (“LTTE”). The applicant became involved in assisting the LTTE. Early in 1998, the applicant’s family joined him in Italy and after that he spent less time with his Tamil friends. On 9 September 1998, the applicant returned to Sri Lanka and helped a Tamil friend who had arrived with him find accommodation in Colombo. While in Sri Lanka, the applicant heard that the authorities had gone to his home searching for him and that the police had questioned his wife. He also heard that his Tamil friend had been arrested and tortured. The applicant was concerned that his name and address would be in his friend’s diary and that consequently he would have come to the attention of the authorities.

3. On 21 October 1998, the Sri Lankan authorities extended the applicant’s passport.  The applicant returned to Italy on 23 October 1998. He stayed in Italy only a few days because he was concerned that the LTTE, who did not trust him, would think that he had betrayed his Tamil friend. On 30 October 1998, the applicant entered Australia on a visitor’s visa that he had obtained in Rome.  In support of his application for a protection visa, the applicant produced two letters, written to him by his wife in Sri Lanka and dated 7 March 1999 and 8 April 1999. The letters stated that that unknown men, who looked like Tamils, had come to their home and threatened to kill him.

4. In its reasons for decision, the Tribunal stated that it did not find the applicant’s account of his association with the LTTE in Italy, his assistance to an LTTE person in Colombo, and the Sri Lankan authorities’ subsequent interest in him “to be plausible in any way”.  It based this conclusion on the inherent implausibility of much of the applicant’s story, the fact that the his claims were contrary to independent country information, the inconsistencies between his submissions and the evidence given by him at the hearing and the absence of any independent evidence supporting the applicant’s assertions. It did not accept that the applicant had ever actively supported the LTTE, that he was sought by police in Colombo or that he was regarded as a traitor by the LTTE.  In relation to the two letters from the applicant’s wife which stated that unknown persons had come to the applicant’s house, the Tribunal stated that:

   “I place no weight on these letters, given that they were produced so late in the proceedings, and that they were written by his wife well after the applicant had lodged his application for refugee status in Australia. I further note that they make no reference to the authorities being interested in him, but refer to unknown people who looked like Tamils coming around their place. I note that the threat from Tamils was never referred to by the applicant at any stage in his submissions, even his one of 11 October 2000, written subsequent to his wife’s letters...”

5. The Tribunal concluded that the applicant did not have a well-founded fear of persecution and accordingly affirmed the decision not to grant a protection visa.

   GROUNDS OF REVIEW

6. In his amended application for an order of review filed on 24 April 2001, the applicant relied on s 476(1)(e) (the decision involved an error of law) and s 476(1)(g) (there was no evidence or other material to justify the making of the decision). On that date he also filed Contentions of Fact and Law setting out particulars of the grounds relied upon.

7. In relation to the first ground of review (s 476(1)(e)), the applicant contended that the Tribunal did not correctly apply the ‘real chance’ test propounded in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (“Chan”) because it gave no weight to the letters from the applicant’s wife. The applicant submitted that the letters were not written solely for the purpose of proving the applicant’s claims because they refer to other family matters. He said that he should not be criticised because the letters were received late because they were written only a few months after the applicant arrived in Australia. He further submitted that the Tribunal’s implied criticism based on the fact that his wife is not disinterested in his application was unfair, as it is only people close to him who can describe threats to him and themselves.

8. The applicant also contended that the inconsistencies in his story occurred because he needs assistance to complete forms, correct his English and type his submissions.

9. In relation to the second ground of review (s 476(1)(g)), the applicant submitted that the Tribunal ought not to have relied on ‘independent country information’ prepared by the Australian government. He submitted that such information is neither independent nor relevant to his situation. He submitted that the information contained in the letters from his wife is more relevant and, by ignoring it, the Tribunal failed to take into account a relevant consideration.

10. The applicant being unrepresented, requested in his contentions, that the Court consider any further reason why the Tribunal’s decision should be set aside.

    ABSENCE OF APPLICANT FROM HEARING

11. At the hearing today the applicant did not appear. He was called outside the Court to no avail. Mr Horan, counsel for the respondent, advised that his instructing solicitor had attempted to contact the applicant without success. He submitted that, despite the absence of the applicant, the hearing should proceed. Order 32 rule 2 of the Federal Court Rules provides:

    “(1)     If, when a proceeding is called on for trial, any party is absent, the Court may:
    …

    (d)proceed with the trial generally or so far as concerns any claim for relief in the proceeding.

    (2)      Where the Court proceeds with a trial in the absence of a party, and at or at the conclusion of the trial an order is made, the Court, on the motion by that party, may set aside or vary the order, and may give directions for the further conduct of the proceeding.

12. In view of the protection that these rules extend to the applicant’s interests, I accepted Mr Horan’s submission that the hearing proceed. However, as an additional safeguard, after Mr Horan gave a brief elaboration of his written submissions, I adjourned the proceeding for fifteen minutes so that a last attempt could be made to contact the applicant. This attempt was also unsuccessful. In the circumstances it seemed to me to be appropriate that I give judgment on the merits of the application without further delay.

    CONSIDERATION

13. As the respondent submitted, the applicant’s contentions amount an assertion that the Tribunal did not give sufficient weight to the letters from the applicant’s wife and gave too much weight to independent country information. Unfortunately for the applicant, it is not for this Court to substitute its assessment of the weight to be attributed to evidence for that of the Tribunal. Section 485 of the Act severely limits the jurisdiction of this Court in matters such as this. Review on the merits is not a ground of review in this Court.

14. It is well established that the fact that the Tribunal expressed no real doubt about its findings removes the obligation to consider whether its findings might be wrong in assessing whether the applicant has a well founded fear of persecution; Minister for Immigration and Multicultural Affairs  v Rajalingam (1999) 93 FCR 220 at [64]-[67] per Sackville J, [137]-[140], [147]-[149] per Kenny J. As counsel for the respondent pointed out, the Tribunal’s statement that the applicant’s story was not ‘plausible in any way’ is indicative of the Tribunal’s certainty in its findings. It is clear that the Tribunal did not consider that there was even a remote chance of the applicant being persecuted and that, therefore, the applicant did not have a “real chance” of persecution, being the test propounded in Chan.

15. The applicant’s submissions in relation to the no evidence ground of review do not address the requirements of s 476(1)(g). The provision must be read in light of s 476(4). The applicant has made no submissions concerning s 476(4). In any event, as the respondent submits, there is no need to consider the requirements of s 476(4) unless the applicant can substantiate his claim that there was no evidence or other material before the Tribunal to justify the making of the decision. In my opinion, the applicant has not been able to do this. As is common in cases where the applicant is not legally represented, I have scrutinised the Tribunal’s reasons myself to see if there is any basis for challenge on this ground. I can, however, find nothing in the Tribunal’s reasons to support this claim.

16. The Tribunal, as it is entitled to do, has taken into account general country information and has assessed the applicant’s claims in the light of this information. The fact that this information is general does not, as the applicant claims, make it irrelevant. The Tribunal relied on this evidence to conclude, contrary to the applicant’s evidence, that it is implausible that a Sinhalese person would lend support to the LTTE, that the LTTE would involve him in its activities after knowing him only for a short time and that a Tamil person associated with the LTTE would rely on a chance meeting for accommodation in Colombo. The Tribunal was entitled to draw those conclusions from the independent evidence and, as a result, to reject the applicant’s claims.

17. I find no reviewable errors in the Tribunal’s reasons and must therefore dismiss the application with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:             20 July 2001

Counsel for the Applicant:	No appearance
Counsel for the Respondent:	Mr C Horan
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	19 July 2001
Date of Judgment:	20 July 2001