Rasaiah v Minister for Immigration and Multicultural Affairs

[2001] FCA 1512

FEDERAL COURT OF AUSTRALIA

Rasaiah v Minister for Immigration and Multicultural Affairs [2001] FCA 1512

CHARMAINE VANAJAH RASAIAH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1256 of 2001

WILCOX J
19 OCTOBER 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1256 of 2001

BETWEEN:	CHARMAINE VANAJAH RASAIAH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	19 OCTOBER 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed with 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 1256 of 2001

BETWEEN:	CHARMAINE VANAJAH RASAIAH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	WILCOX J
DATE:	19 OCTOBER 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. When this matter came on for hearing Mr Zipser, counsel for the applicant, obtained leave to file in court an amended application for an order of review.  The amended application raises only one ground and Mr Zipser indicated this is the only ground he wishes to argue. 

2. The ground was set out in the amended application in the following way.

   “1.  The applicant claimed before the RRT that everyone has abandoned her .... because she married a Muslim.  This statement contains a claim of fear of persecution by way of discrimination if required to return to Sri Lanka.  The RRT did not deal with this claim in light of the evidence and country information before the RRT this gives rise to an error under section 476(1)(b), (c) or (e) of the Migration Act.”

3. The material to which the amended application refers is contained in the reasons for decision of the Tribunal given on 17 July 2001.  Those reasons are lengthy, mainly because there has been quite a history to this claim.  A prior decision was set aside by order of this Court and there was a rehearing before a different Tribunal member. 

4. The member of the second Tribunal took the applicant to her earlier statements and, in particular, pointed out to her that a number of claims she then made had not been previously made.  In relation to this circumstance, the Tribunal said:

   “The Tribunal again referred to the question of claims raised for the first time at this hearing which had not been mentioned before, in relation to the alleged approaches by the LTTE and the police detention and rape all in 1995.  The applicant stated that she was scared to go back to Colombo because the LTTE will recruit her.  She claimed that the police and army had asked her not to return and she would not be able to enter as she had before by paying money.  She would not be able to face again the torture she had already faced and no one would give her accommodation in Colombo as she no longer has any relatives there and everyone has abandoned her (including her relatives in Australia) because she married a Muslim.”

5. The Tribunal member did not accept the veracity of many of the claims made by the applicant.  He was influenced by the fact that many of the claims, that were important to her application for refugee status, were not made until the second hearing. 

6. In his reasons for decision the Tribunal member did not make any reference to the applicant’s statement “everyone has abandoned her because she married a Muslim”.  Mr Zipser says this was evidence giving rise to a claim of persecution.  So it should have been investigated and considered by the Tribunal member. 

7. I cannot read the statement by the applicant in this way.  It seems to me apparent that the context of the statement was that the applicant would encounter difficulties in Colombo, in particular about accommodation, and could not expect to receive assistance from relatives, or perhaps friends, because of the fact that she had married a Muslim.  This may indicate a prejudice, even discrimination on a religious basis, but I cannot see that it amounts to a claim of persecution.  It has to be remembered that the notion of persecution underlying the Convention on Refugees is persecution inflicted by the State, or by other people against which the State does not give protection.  I do not understand how it could be thought the State could give protection against peoples’ indifference to a former friend, or to a relative, because of their disapproval of her having married a particular person, or a person of a particular religious faith.

8. This is no more than a claim of potential difficulties.  I do not think it could possibly be regarded as a claim for persecution on the ground of religion. 

9. I note that the applicant was represented by a migration agent at the second Tribunal hearing.  It was not suggested by the migration agent that this was a discrete claim of persecution warranting attention. 

10. It seems to me the submission amounts to no more than an attempt to raise a ground of review which is not really open. 

11. The application for review will be dismissed with costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:             31 October 2001

Counsel for the Applicant:	Ben Zipser
Migration Agent for the Applicant:	Rasan Selliah
Counsel for the Respondent:	Stephen Lloyd
Solicitors for the Respondent:	Australian Government Solicitor
Date of Hearing:	19 October 2001