Rupasinghe v Minister for Immigration and Multicultural Affairs - [2001] FCA 958

FEDERAL COURT OF AUSTRALIA
Rupasinghe v Minister for Immigration & Multicultural Affairs [2001] FCA 958
MIGRATION – review of decision of Refugee Review Tribunal (“Tribunal”) – whether decision involved an error of law – whether the Tribunal erred in concluding that past harm experienced by the applicants did not amount to persecution – whether such an error would have affected the ultimate decision – whether there had been a change of circumstances since the past conduct had occurred – whether the Tribunal wrongly applied the “well-founded fear” test – whether the Tribunal was obliged to consider whether the applicants had access to effective state protection once it had found that the applicants did not have a well-founded fear of persecution
Migration Act 1958 (Cth) s 476(1)(e)
Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 followed
Minister for Immigration and Multicultural Affairs v “X” [2001] FCA 858 distinguished
Capa v Minister for Immigration & Multicultural Affairs [2001] FCA 898 distinguished
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 referred to
Minister for Immigration and Multicultural Affairs v Sarrazola [2001] FCA 263 followed
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 considered
Puerta v Minister for Immigration and Multicultural Affairs [2001] FCA 309 followed
HIROSAN RICHARD PERERA RUPASINGHE & ANOR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
V 989 of 2000
STONE J
23 JULY 2001
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 989 OF 2000

BETWEEN:

HIROSAN RICHARD PERERA RUPASINGHE
FIRST APPLICANT

IRANGA SANJEEWANI RUPASINGHE
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

STONE J

DATE OF ORDER:

23 JULY 2001

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.   the application be dismissed;
2.   the applicants 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 989 OF 2000

BETWEEN:

HIROSAN RICHARD PERERA RUPASINGHE
FIRST APPLICANT

IRANGA SANJEEWANI RUPASINGHE
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

STONE J

DATE OF ORDER:

23 JULY 2001

WHERE MADE:

MELBOURNE

REASONS FOR JUDGMENT
BACKGROUND

The applicants, who are husband and wife, are citizens of Sri Lanka who arrived in Australia on 9 March 1997. The applicants lodged their application for protection visas under the Migration Act 1958 (Cth) (“Act”) on 14 April 1997. That application was refused by the respondent’s delegate (“Delegate”) on 13 June 1997 and the Delegate’s decision was upheld by the Refugee Review Tribunal (“Tribunal”) on 26 November 1999. The first applicant sought review of the Tribunal’s decision in this Court and, on 19 April 2000, the Court, by consent, set aside the decision and remitted the matter to the Tribunal to be determined according to law. On 1 December 2000, a differently constituted Tribunal handed down its decision dated 15 November 2000, again affirming the Delegate’s decision not to grant protection visas to the applicants. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] FCA 958
Decision Date: 23 JULY 2001

CaseChat Overview and Summary

In the case of Rupasinghe v Minister for Immigration and Multicultural Affairs, the applicants, Mr and Mrs Rupasinghe, sought a review of a decision by the Refugee Review Tribunal (the Tribunal) to reject their applications for a protection visa. The dispute involved the interpretation and application of the 1951 Geneva Convention Relating to the Status of Refugees, as amended by the 1967 New York Protocol, and the criteria for the grant of a protection visa under Australian law. The primary issue before the court was whether the Tribunal erred in its assessment of the applicants' claims of persecution in Sri Lanka, particularly in relation to an incident on 14 February 1997, and whether this error was such as to justify the setting aside of the Tribunal's decision.

The court considered the evidence and findings of the Tribunal regarding the incident on 14 February 1997, where the Applicant was allegedly stopped by individuals armed with guns, clubs, and swords, and threatened with violence unless he ceased his support for the United National Party (UNP). The Tribunal accepted that the Applicant was stopped and threatened but expressed doubts about the extent of the violence and the number of assailants. The court examined the principles of judicial review and whether the Tribunal's findings were open to it on the evidence before it. The court held that the Tribunal's findings were not shown to be plainly wrong or unjust and that the applicants had not demonstrated a legal error on the part of the Tribunal warranting the setting aside of its decision. The court also noted that the Tribunal's assessment of the Applicant's credibility and the exaggeration of past incidents was consistent with its overall findings.

Consequently, the court dismissed the applicants' appeal, upheld the Tribunal's decision, and ordered that the applicants pay the respondent's costs. The court found no basis to interfere with the Tribunal's determination that the applicants did not meet the criteria for a protection visa under the relevant legislation and Convention.

Orders

Orders of the court

1. the application be dismissed;

2. the applicants pay the respondent’s costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

STONE J

Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the 1951 Geneva Convention Relating to the Status of Refugees, as “amended” by the 1967 New York Protocol Relating to the Status of Refugees (compendiously, “the Convention”). Article 1A(2) of the Convention provides that a refugee is any person who: “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”THE TRIBUNAL’S DECISION The applicants have not sought to challenge the findings of fact made by the Tribunal in relation to the claims made by Mr Rupasinghe (“Applicant”) (Mrs Rupasinghe did not make any separate claims). The Applicant was a supporter of the United National Party (“UNP”), an opposition party in Sri Lanka and, the Tribunal found, “a low level operative who undertook practical support tasks for the UNP”. After the People’s Alliance (“PA”) came into power in 1994, the Applicant experienced some verbal harassment because of his involvement in the UNP. The Tribunal accepted in part the Applicant’s evidence regarding an incident that took place on 14 February 1997. The Tribunal’s assessment of this incident is central to the Applicant’s allegation of legal error and I therefore set out the Tribunal’s finding in detail. The Tribunal described the Applicant’s claim in the following terms:“The applicant claims that he was a youth leader for the UNP and on 14 February 1997 was returning home with his wife from a UNP propaganda meeting held in connection with the local government elections. He claims that his car was followed by a jeep which overtook his car and stopped forcing the applicant to also stop his car. He claims that he saw about six people get out of the jeep and rush towards his car: two of them had pistols and the others had ‘clubs and swords’. He was told to get out of the car, which he did, and was told that unless he withdrew his support for the UNP then he would be cut up into pieces. His car was damaged by the person carrying the club. They then all drove off saying that they knew where the applicant lived and they would burn his house down if he did not stop his support for the UNP. They also told the applicant that if he went to the police then he would have to face the consequences. The Tribunal considered the Applicant’s claim in the context of his account of events prior to and after that incident. The Tribunal expressed doubts about the Applicant’s account of the episode and expressed its finding as follows:“Nevertheless, independent information indicates that such acts of intimidation can occur and for the purposes of considering the claims made by the applicant in support of his application for recognition as a refugee, I am prepared to accept that he was stopped and threatened as he and the applicant wife drove home after attending the political meeting on 14 February 1997. The applicant claims that the encounter involved six people armed with guns, clubs and swords, him being held by the neck, having a gun held at his head, they were threatened with being shot or cut to pieces and their house being burned down, there was damage to their car and they were warned not to go to the police. Given that nothing more than some verbal harassment had occurred in the past eight years of the applicant’s involvement with the UNP, what the applicant claims happened on 14 February 1997 seems to have been particularly strong action on the part of his political opponents … I consider that the totality of the evidence suggests that the applicant has exaggerated what has happened in the past but I am prepared to accept that their car was stopped, that they were threatened by people armed with weapons and that the applicants were frightened by what had occurred.”

Ratio Decidendi

Legal Principle Established

Established by: STONE J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 989 OF 2000

BETWEEN:	HIROSAN RICHARD PERERA RUPASINGHE FIRST APPLICANT
IRANGA SANJEEWANI RUPASINGHE SECOND APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	23 JULY 2001
WHERE MADE:	MELBOURNE