Ratnasekara, S. v Minister for Immigration, Local Government & Ethnic Affairs

[1992] FCA 706

JUDGMENT No. .%.h .... lS?-

mneral Distribution not reaired

FEDERAL COURT OF AUSTRALIA ) )

V I C T O R I A S C T REGISTRY	No. VG 121 OF 1992
m E R A L DIVISION

B E T W E E N :

SUSIL RATNASEKARA

W U A R A M B E KANKANANGF

A N D

THE MINISTER OF STATE FOR THE COMMONWEALTH 0 F AUSTRALIA for IMMIGRATION, LOCAG GOVERNMENT AND ETHNIC AFFAIRS

JUDGE MAKING ORDER	KEELY J
-	MELBOURNE

ORDER MADE 15 SEPTEMBER 1992

Note :	Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

MINUTES OF ORDER

1. Application dismissed.

2.    The Applicant shall pay the costs of the respondent.

FEDERAL COURT OF AUSTRAZlIA )

)

1     No. VG 121 OF 1992

)

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B E T W E E N :

A ~ ~ l i c a n t

A N D

Res~ondent

REASONS FOR JUDGMENT

15 September 1992 KEELY J

Before the hearing of this matter commenced I had studied the

application, the statement of reasons (the reasons) by the respondent's delegate (the delegate) dated 13 March 1992, the
applicant's affidavit, sworn 17 August 1992, the exhibits to

that affidavit, including the reports of two interviews of the applicant, the applicant's written contentions of fact and law and the respondent's written contentions of fact and law. Today I have heard the oral submissions of Mr Rose of counsel in support of the application and also in reply to the submissions advanced by Mr Downing of counsel on behalf of the respondent.

I have considered these submissions since the hearing finished

at 12.45 today.

In this case it is a matter of applying well established legal principles to the relevant factual material. The applicant cannot ask this court to decide that the delegate was wrong on the merits because the merits of the application for refugee status were a matter for the delegate.

In my opinion the application for an order of review must be

dismissed - substantially for the reasons advanced by Mr

Downing both orally and in his written contentions of law. The applicant sought to rely upon the High Court decision in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. In my opinion that decision does not assist the applicant because on all the material before him it was open to the delegate to reach the conclusion (expressed in paragraph 9 of the reasons) that there was not "a real chance

that [the applicant] will be persecuted if he returns to the	country of his nationality" - per Mason C.J. at 389.
Mr Rose's submission to the court was that that conclusion was
"unreasonable" and that the delegate was required to find that there was "a real chance of persecution'' having regard to:

1.    the applicant's earlier involvement with the J.V.P.

2.    the apparent change of his allegiance to becoming a supporter of the U.N.P.

3.    the fact that his brother-in-law had a high profile in the U.N.P.

4.   the attack on his family during which the

applicant's father was shot and later died.

In my opinion the delegate accepted that the applicant had a fear of persecution but decided that that fear was not well- founded; that conclusion was reasonably open to him on the material before him, notwithstanding the matters relied upon by the applicant's counsel.

The application-will be dismissed and the applicant ordered to pay the costs of the respondent.

I certify that this and the two (2) preceding pages are a true copy of the Reasons for Judgment of Mr Justice Keely.

Associate:

Dated:  15 September 1992

Counsel for the Applicant : m. P. Rose

Solicitors for the Applicant :	Ravi James & Co.
Counsel for Respondent	Mr. R. Downing

5olicitor for the Respondent : Australian Government

Solicitor

Date of Hearing	:	15 September 1992
Date of Judgment	:	15 September 1992