The applicant, Mr Anandaraj Subramaniam, applies for review of a decision of the Refugee Review Tribunal (“RRT”) rejecting his claims for recognition of refugee status and the grant of a protection visa. The applicant is a 44 year old Sri Lankan citizen. On 5 September 1995, in Colombo, he applied for a visitor visa to Australia. The visa was granted the next day. It was valid for 3 months. The applicant arrived in Australia on 20 September 1995. His visitor visa was due to expire on 20 December 1995. On 19 December 1995 the applicant applied for a protection visa. On 25 July 1996, a delegate of the respondent determined that the applicant was not a refugee and refused the grant of a protection visa. On 14 August 1996 the applicant applied for review of that decision to the Refugee Review Tribunal which I shall refer to variously as “the RRT” or “the Tribunal”. On 22 May 1997 the RRT affirmed the primary decision made by the respondent’s delegate. On 21 November 1997 the applicant applied to this Court for review of the RRT’s decision.

THE STATUTORY FRAMEWORK

The relevant criteria for the grant of a protection visa are set out in s 36(2) of the Migration Act 1958 (“the Act”) and Clause 866 of Schedule 2 to the Migration Regulations. One basic criterion is that the respondent is satisfied that an applicant for such a visa is a person to whom Australia has protection obligations under the terms of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol. The relevant part of Article 1 of the Convention defines a “refugee” as any person who:

“Owing to 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 ...”.

FACTUAL BACKGROUND

The applicant claimed fear of persecution in Sri Lanka on the basis of his Tamil race and imputed political opinion as a supporter of the Liberation Tigers Tamil Elam (the “LTTE”). The following summary of the applicant’s case before the RRT is taken largely from the Tribunal’s reasons. The applicant was born in the northern village of Chilaw on 31 August 1953. He is a Tamil of the Hindu religion. The applicant was educated at Royal College Colombo. In 1972 he was employed by a terrazzo flooring contractor. The applicant was married in 1976 to a Singhalese Buddhist. Their only child was born in 1977. In 1979 the applicant established his own business in terrazzo flooring. In 1983 there were ethnic riots in Colombo. As a…

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.

Continue reading Subramaniam v MIMA

Details

AGLC: Subramaniam v MIMA [1998] FCA 305
Case: [1998] FCA 305
Decision Date: 10 MARCH 1998

CaseChat Overview and Summary

The applicant, Mr Anandaraj Subramaniam, sought judicial review of a decision by the Refugee Review Tribunal to reject his claims for recognition as a refugee and for the grant of a protection visa. The central issues for determination were whether the Tribunal had erred in its approach to assessing the applicant's credibility and in its handling of the matter of relocation. The applicant argued that the Tribunal misconstrued a previous decision regarding the consideration of delay in making a refugee claim and failed to properly inquire into his experiences while allegedly detained. Additionally, the applicant contended that the Tribunal erred in its assessment of the reasonableness of relocation within Sri Lanka.

The court found that the Tribunal had not misconstrued the relevant case law concerning the consideration of delay in making a refugee claim, as it was permissible to take such delay into account when assessing the applicant's credibility. Furthermore, the court held that there was no requirement for the Tribunal to raise concerns about the delay with the applicant directly. Regarding the matter of inquiry, the court determined that the Tribunal was entitled to reject the applicant's account of his detention and did not err in its handling of this issue. The court also found that the Tribunal's assessment of the reasonableness of relocation within Sri Lanka was supported by the evidence before it, and therefore, no error had been made in this regard.

Consequently, the court dismissed the applicant's application for judicial review and ordered that the applicant pay the respondent's costs.

Orders