Selliah v MIMIA

Case [1999] FCA 615

Seevarajah Selliah v Minister for Immigration and Multicultural Affairs [1999] FCA 615
Migration

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

JUDGES:       EINFELD, NORTH AND EMMETT JJ

No. VG 178 of 1998

Number of pages - 17

Migration - appeal from a decision of a single judge dismissing the application against the decision of the RRT not to grant a protection visa - Sri Lankan national of Tamil extraction - whether Tribunal could rely on inconsistency between statements made upon arrival and at the interview to ascertain creditworthiness - whether the tandem hearing of the Tribunal affected the ultimate result of the application - whether there was a failure to comply with section 429 of the Migration Act 1958 (Cth) - whether the Tribunal incorrectly interpreted the test for a "well founded fear" of persecution - whether the Tribunal ought to have made a finding as to the appellant's subjective fear.

Migration Act 1958 (Cth)

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 followed

Eshetu v The Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300

referred to

Sun Zhan Qui v The Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505 referred to/followed

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 followed

Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 followed

Abebe v Minister for Immigration and Multicultural Affairs (unreported High Court 14 April 1999) followed

State Rail Authority of NSW v Earthline Constructions Pty Ltd [1999] 73 ALJR 306 followed

DATE OF HEARING:        19 November 1998

DATE OF DECISION:        12 May 1999

PLACE:        MELBOURNE

#DATE 12:05:1999

Appearances

Counsel for the Applicant:        Mr R. Appudurai

Solicitor for the Applicant:        Wisewoulds

Counsel for the Respondent:        Mr C. Gunst QC; Mr W. Mosley

Solicitor for the Respondent:        Australian Government Solicitor

THE COURT ORDERS THAT:

  1. The appeal is dismissed with costs.

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

REASONS FOR JUDGMENT OF JUSTICES EINFELD AND NORTH

1       The facts of this matter are set out in the reasons for judgment of Justice Emmett which we have had the benefit of reading. We agree with his Honour that the arguments advanced by the appellant do not in this case provide adequate reasons for overriding the Tribunal's decision. Nonetheless, for our part we consider that at least two of the appellant's arguments provided a basis for concern and for careful consideration.

2       One relates to the Tribunal's reliance on the creditworthiness of the appellant by comparing statements made at the airport upon arrival and other places with those made at interview. A number of Judges of the Court have previously expressed serious reservations about this method of deciding applications for refugee status. As commonsense, humanity and the Handbook of the United Nations High Commissioner for Refugees demonstrate, a person escaping persecution or worse, often not knowing if there will ever…

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AGLC
Seevarajah Selliah v Minister for Immigration and Multicultural Affairs [1999] FCA 615 Migration
Case
[1999] FCA 615
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, the matter of Selliah versus the Minister for Immigration and Multicultural and Indigenous Affairs was heard and determined. The appellant, Selliah, was a Sri Lankan national who had applied for a protection visa in Australia. His application was refused, and he appealed this decision. The central issue before the court was whether the tribunal that had initially heard the case had erred in its findings regarding the appellant's credibility and the likelihood of persecution if he were to return to Sri Lanka.

The court examined whether the tribunal had correctly applied the law in assessing the appellant's credibility and the evidence presented. It was noted that the tribunal had made findings based on inconsistencies in the appellant's statements and had considered the evidence of the respondent, the Minister. The court found that the tribunal had not erred in its assessment and that the findings were supported by the evidence. The court held that the tribunal had appropriately exercised its discretion and that the appeal was without merit.

Consequently, the appeal was dismissed with costs. The decision underscores the importance of the tribunal's role in assessing the credibility of protection visa applicants and the standard of review applicable to such decisions. The outcome reinforces the need for thorough and careful consideration of all evidence when making findings about the credibility of applicants and the risk of persecution upon return to their home country.

Orders

Orders of the court

1.

The appeal is dismissed with costs.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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