Sidamparam, S.K. v Minister for Immigration & Ethnic Affairs

NOT FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA	1
)

NEW SOUTA WALES DISTRICT REGISTRY

No. G.327 of 1986

DIVISION	GENERAL	)
-

BETWEEN :

SKANDA KUMARA

SIDAMPARAM

Applicant

AND :

MINISTER FOR

IMMIGRATION AND ETHNIC

AFFAIRS

Respondent

CORAM :

WILCOX J

PLACE :

SYDNEY

DATE :

AUGUST

1986

MINUTES OF ORDER

THE COURT ORDERS

THAT:

The interim order made on

7 August 1986 be dissolved.

The costs of the applications fo r interlocutory

relief made on 7 August 1986 and 12 August 1986 be

the respondent's costs in the principal proceedings.

2 .

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

NOT FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA

)

NEW SOUTH WALES DISTRICT REGISTRY

)	No. G.327 of 1986

)

DIVISION

GENERAL

)

BETWEEN: SKANDA KUMARA

S IDAMPARAM

Applicant

AND: MINISTER FOR

IMMIGRATION AND ETHNIC

AFFAIRS

Respondent

CORAM :

WILCOX J

PLACE :

SYDNEY

DATE :

AUGUST

1986

EXTEMPORE REASONS FOR JUDGMENT

This is an application

fora further extension of

interim order, made under s.15 of the Administrative Decisions

(Judicial Review) Act 1977, restraining the respondent

-	..Minister for Immigration and Ethnic Affairs from	taking any
’ Steps to remove the applicant from Australia.

2 .

The applicant, Skanda Kumara Sidamparam, is a native

of Sri Lanka being of Tamil extraction. Mr Sidamparam entered

Australia on 21 July 1986 by aircraft arriving from Singapore.

He travelled without an airline ticket

or a visa for

Australia. Upon arrival	at Sydney Airport he made himself
known to the authorities	and was placed in custody pursuant to

s.36A

of the Miqration Act 1958 pending his removal

from

Australia pursuant to that section.

Upon the same day he was

interviewed by an officer of the Department of Immigration

and

Ethnic Affairs, Mr Collins.

Mr Collins had the assistance of

an interpreter during that interview.

A lengthy record of

interview was taken

and in this record of interview the

applicant indicated that he sought refugee status.

Re gave a

considerable amount of material regarding his background

and

the circumstances under which

he left Sri Lanka. It is not

necessary for me to set this out in any detail.

It is

sufficient to say that the applicant

is a married man

aged 34

years.

Re had worked for the railways until some time

1985. An incident had occurred in May 1985 when the home of

his father, at which he resided with his wife

and two

children, was destroyed by the military, and there were

various other incidents in which he had been involved in which

violence had occurred. However, the latest incident involving

the applicant appears to be the burning of the family home in

May 1985 some 14 months before he left his village en route to

- Australia.

3 .

Mr David Begg, the Amnesty International Refugee

Co-ordinator in Sydney, became aware of

Mr Sidamparam's case.

On 20 July he interviewed Mr Sidamparam and took a statement

from him.

This statement amplifies the account which

had been

given to Mr Collins.

At that time, Mr Begg was under the

belief that there would be

a meeting of the DORS committee,

that is to say, the Determination

Of Refugee Status Committee

on Tuesday,'S August.

He had spoken to an officer of the

DORS

Secretariat, Hiss Carmen Kovacs, about the meeting

a d had

indicated that he was sending material for the

m eting.

Apparently, at that time

Miss Barbara Phi, who

is the Director

of the Secretariat, was absent, ill.

As it turned out, the

DORS committee met on Monday, 4 July.

According to Miss Phi's

affidavit, it had always been intended that the committee meet

on that day.

It may well be that the error was that of

Begg, alternatively it may be that Miss Kovac misunderstood the date and incorrectly informed Mr Begg. As matters have since turned out, I do not think it is necessary to resolve that question. Mr Begg did in fact find out shortly before

the meeting on the Monday that the committee

would meet that

afternoon, and he gave information on the case

to Miss Phi

across the telephone.

It appears from the notes that she

made, and which are now in evidence, that the substance of Mr Sidamparam's later statement was conveyed to her over the

telephone:

and it further appears, from the minutes of the

- committee, that she passed on this information to the

committee.

4 .

On the other hand it is clear that not all of the

detail was passed on.

Indeed this would not have been

possible, given its length. In the result, on Monday,

August, the committee decided unanimously to recommend refusal

of refugee status.

This recommendation was conveyed to a

delegate of the Minister, who n 5 August decided not to

recognize the applicant as a refugee within the meaning of the

relevant Convention.

Notice of this decision was conveyed to

the applicant uporr the following day and arrangements were

made for his removal	from Australia by a flight due to leave
Sydney at 11.30 a.m.	upon the following day, 7 August, 1986.

On the morning of

7 August 1986, an Application was

filed in this Court commencing the present proceedings.

Counsel urgently moved for an interim order to restrain

removal of the applicant from Australia pending further

order.

The matter came before the Court

a about 10.30 that morning

and material was put before me to show the confusion about the

date of the DORS committee meeting.

There was not time to

investigate this matter at that stage. On the material before me, I thought that there may have been a denial of natural justice in that, according to Mr Begg, he had been told that

the meeting would take place on Tuesday

and had prepared

information designed to reach Canberra

-- where the meeting

--was to be

held -- in time for the meeting on Tuesday,

but in

fact the meeting had been held before that material was

received.

I was not then aware that the substance of that

material had been passed by telephone before the meeting	on
the Monday.

In the result, I felt that on the material then

before me it was arguable that there was a denial of natural justice and that I should intervene to restrain the removal from Australia of the applicant pending further order. I so

ordered.

The matter was then stood over :!ntil today.

There

is now much more information before the

CrJurt as to what

occurred.

The most significant new factor is that the

committee met again on 11 August.

It is conceded that, at

that time, it had before it the whole of the information which

had been sent to the DORS Secretariat by Mr Begg:

which

information is identified in a Statement of Reasons under s.14

of the Act made

by the Minister, ex. A in these proceedings,

at s.B(viii).

It is not suggested that there was any material

which ought to have been considered by the committee,

and

which emanated from the applicant or anybody acting on his

behalf, which was not in fact considered by the committee.

Notwithstanding this additional material, the committee

decided to adhere to its previous

view.

The delegate of the

Minister agreed.

The Minister has himself considered the

matter and he, last night, decided to refuse the application for refugee status. I infer from this that he would, unless

- further restrained by the Court, in due course take action

remove the applicant from Australia pursuant to s.36A of the

Act.

6 .

The question which

I have to consider

is whether, on

the facts presently before the Court, there

is a serious

question to be tried as to a legal invalidity in the

decision-making process.

On behalf of the applicant Mr

Travers has argued two grounds; namely, breach of natural justice, s.S(l)(a) of the Administrative Decisions (Judicial

Review) Act, and an improper exercise of power,

s.5(l)(e),

and, in particular, that the 2ommittee exercised

its power in

accordance with a predetermined policy and without regard to

the merits of the case, s.S(2)(f).

I see no basis for an argument that there was

breach of the rules of natural justice, at least in respect of the meeting of the committee held on 11 August. Having regard

to the fact that the applicant's application was reconsidered at that meeting, I do not think that it is fruitful to

consider whether there was

in fact a denial of natural justice

in respect of the earlier meeting. If there was such a

denial, then it was cured by a full re-examination on the

merits on the second

occasion.

The only argument which as been put in support of

the proposition that there was

a denial of natural justice

one which refers to

a document annexed to the affidavit of Mr

- Begg and which is apparently an internal guideline

issued by

an officer of the Department

of Immigration and Ethnic

Affairs, dated 30 April 1986, and entitled "Sri Lankan Case

Management". The document says that

it is provided in respect

of Sri Lankan cases presenting

at regional and area offices in

Australia;

and in para.2

the substance of a policy endorsed

by the Minister is set out.

Included in para.2 is a

requirement that the DORS committee limit

its recommendations,

in respect of Sri Lankan cases, to the refugee status claim on

the basis that the Department will draw to the attention of

all rejected applicants the

prwlsions of s.6A(l)(e) of the

Migration Act, that

is to say the paragraph which refers to

compassionate and humanitarian cases.

Reference is also made to the desirability that

"all

applictions for resident status from Sri Lankans

to be treated

sympathetically on a case

by case basis" and that "approval

would be dependent on applicants having a demonstrable basis for their fear of return, eg "ethnicity or violence". It was

then said that six months temporary entry permits

would be

appropriate and I take this to

be a direction as to the

mechanics of permitting a person to stay

in Australia if,

after consideration on a case by case basis, the necessary

demonstrable basis for fear of return

is made out.

It is not clear from the document whether

it is

intended to govern the case

of Sri Lankans who arrive

- Australia without a valid temporary entry permit.

I say this

8 .

because the penultimate sub-paragraph

in para.2 speaks about

..-

the necessity for d valid temporary entry permit. However,

whether or not the document does directly apply,

I see no

basis for doubt that the directions which it contains were

applied in the present case. The applicant's application for

refugee status was considered

on a case by case basis. I

suppose that views

would differ as to whether the committee

treated the application 'sympathetically". NO doubt the

ap?.!-icant would feel that there had only been sympathetic

traatment if the application was successful. But I think that

it must be said, in fairness to the committee, that its

members obviously looked at the material quite closely and

that they expressed opinions about that material which would

be open to be expressed by persons having

a eneral sympathy

with the plight of persons such as the applicant who are

Tamils in Sri Lanka. The basic reason why the members of

the

committee did not decide to recommend refugee status appears

to be that they were unconvinced that the applicant was in ny

personal danger in Sri Lanka. They were obviously influenced

by the period of time which had elapsed since the last

specific incident to which he referred. It is not for me to

comment one way or the other on this view of the facts. think it is enough to say that it is not made out that

the

members of the committee failed to treat his application

sympathetically on

a case by case basis.

It follows that the members of the committee were not

persuaded that there was

a demonstrable basis for Mr

Sidamparam's fear of return. He may well have

a genuine fear,

but the question is whether there is

a demonstrable basis for

that fear and the committee found against

him in that respect.

Unless the situation was such that the finding was one to which no reasonable person could come, the Court has no role

in interfering with that decision. It

is not seriously

submitted that the decision was bad on

the ground that it was

unreasonable in law and

I see no basis for any such

conclusion. I think it follows from this that, supposing the guidelines were applicable, the committee	did in fact comply
with their relevant provisions.

I have dealt with this matter at some length,

notwithstanding the fact that

I am of the opinion

that this

has very little

to do with a claim of denial

of natural

justice. Natural justice is directed towards procedural

matters, not substantive matters. However, if there was any

substance in the claim put by the applicant, he would be

entitled to the benefit of that submission under the rubric

that the committee

and, subsequently, the Minister had failed

to take account of

a relevant clrcurnstance. For that reason I

have discussed the substance of the submission,

but I find

against the applicant

in regard thereto.

10.

I think that the fate of the second submission

follows from what I have already said.

I do not see any basis

for the proposition that the committee made

its decision in

accordance with a predetermined policy and without regard to

the merits.

Although there is no specific evidence on the

matter, it may be assumed that the committee was aware

of the

terms of s.36A of the Migration Act

and the general policy of

the Minister that persons who enter Australia without an entry

penait should be required to be removed from Australia. There

is, of course, nothing irregular about such a policy.

The

real question is whether it was applied without consideration

of the merits of this case.

As I have indicated, I think that the committee

did

give careful treatment to the facts of this case

and,

consequently, it must follow that the submission fails.

I do

not think that there is any serious question to be tried

relation to the lawfulness of the

Minister's decision to

remove the applicant from Australia upon the basis

of the

facts as they now appear.

Consequently it is not appropriate

to extend the existing interim order.

The order that I make is that I dissolve the interim

order made on

7 August 1986.

-	In respect of the applications for interlocutory

relief on 7 August. and today, costs are to	be the respondent's
costs in the principal proceedings.

ll.

I certify the ten (10)

preceding pages to be a true copy of

the Reasons for Judgment

his Honour Mr Justice Wilcox.

Associate: +

Date:

27 August

1986

Counsel for the

Applicant:

Mr G Travers

Solicitors for the

Applicant:

Morgan Ardino

E, CO

Counsel for the Respondent:

Mr C J Stevens

Solicitors for the

Respondent:

Australian Government

Solicitor

Date(s) of hearing:

7 and 12 August

1986

[1986] FCA 376

8 Dec 1986