Rajenthiram v Minister for Immigration & Multicultural Affairs (inlcudes corrigendum dated 3 September 1999) [1999] FCA 1119 (10 August 1999)

Last Updated: 6 September 1999

FEDERAL COURT OF AUSTRALIA

Rajenthiram v Minister for Immigration & Multicultural Affairs

[1999] FCA 1119

SUJANTHAN RAJENTHIRAM v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 395 OF 1999

EINFELD, WHITLAM and KATZ JJ

SYDNEY

10 AUGUST 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 395 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	SUJANTHAN RAJENTHIRAM Appellant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGES:	EINFELD, WHITLAM and KATZ JJ
DATE:	10 AUGUST 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT - CORRIGENDA

1. Page 2, before para 7

Insert:

[AFTER DISCUSSION FOLLOWING DELIVERY OF THE OTHER JUDGMENTS IN THE APPEAL]

2. Page 2, new para 7

Insert as new paragraph 7:

The attitude I have always taken is that if there is some arguable merit in the application and the applicant has no money to meet a costs order, costs ought not to be granted for the reason that he would be prevented from making any fresh application while the debt for costs was outstanding. However, in a case where there is no identifiable merit in the proceeding in this court, costs should be granted. In the circumstances we will grant costs on this occasion. In this particular case the appeal will be dismissed with costs.

3. Page 2, para 8

Original paragraph 7 is now paragraph 8.

Associate:

Dated: 3 September 1999

FEDERAL COURT OF AUSTRALIA

Rajenthiram v Minister for Immigration & Multicultural Affairs

[1999] FCA 1119

SUJANTHAN RAJENTHIRAM v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 395 OF 1999

EINFELD, WHITLAM and KATZ JJ

SYDNEY

10 AUGUST 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 395 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	SUJANTHAN RAJENTHIRAM Appellant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGES:	EINFELD, WHITLAM and KATZ JJ
DATE:	10 AUGUST 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

EINFELD J:

1 The appellant, who is 21 years of age, is a Sri Lankan of Tamil ethnicity and Hindu faith who arrived in Australia on 21 July 1998 without a visa. On 9 November 1998 the Refugee Review Tribunal affirmed a delegate's refusal to grant him refugee asylum. On 14 April 1999 Justice Branson dismissed an application to review that decision and the appellant now appeals her Honour's judgment. The Tribunal's decision was based upon its conclusion that the facts relied upon by the appellant were not a plausible account of the circumstances which led up to his departure from Sri Lanka.

2 The Court has frequently expressed concern about decisions made purely on the grounds of credibility by a non-expert Tribunal where there are not the usual safeguards for the ascertainment of truth long established in the adversarial system of justice operating in this country. Having in mind the possible consequences of error, such decisions can create difficulty and doubt about the legality of adverse decisions received by applicants for refugee status.

3 However, this case gives rise to very little doubt. The Tribunal has clearly identified the difficulties in accepting the account of the appellant and Justice Branson was able to find no legal fault in the way in which the Tribunal approached its task. It is apparent that her Honour carefully considered the way in which the Tribunal approached the matter and how it dealt with the various factual allegations made.

4 I have also considered the reasoning of the Tribunal and find myself in the same position as her Honour. As it seems to me, the Tribunal gave the appellant every opportunity to put his case in its fullest detail. It was able to detect a number of inconsistencies and difficulties in the acceptance of his account and there is nothing that comes out of my consideration of its determination to suggest that it failed to accord the applicant the full range of rights and entitlements which the Migration Act prescribes.

5 It is not for the Court to substitute its own view of the facts. On the other hand, if too much reliance is placed on credibility without reason or apparent justification, the Court might have a basis for reviewing the decision and sending it back for rehearing. But this case is not in that category.

6 In those circumstances it seems to me that there are no grounds on which Justice Branson's decision can be disturbed and no basis for interfering with the decision of the Tribunal. I would therefore propose that the appeal be dismissed.

7 One other matter should be added for completeness of the record. The appellant was only supplied with the respondent's written submissions yesterday and, in the course of the hearing today, proposed that he should be given time, effectively an adjournment, in order to answer them. The respondent's submissions raised no new matters than were raised before the learned primary Judge. They discuss the legal questions agitated before her Honour, are perfectly regular and raise no particular matters of controversy. The appellant did not wish to make any oral submissions on the matters raised even though he was familiar with them because of his exposure to them below. For those reasons, and because of the great limitations on the Court's powers to intervene in matters of this kind, we could see no basis for granting an adjournment and no utility in doing so. Hence we proceeded with the hearing today.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marcus Einfeld AO.

Associate:

Dated: 10 August 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 395 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	SUJANTHAN RAJENTHIRAM Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGES:	EINFELD, WHITLAM and KATZ JJ
DATE:	10 AUGUST 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WHITLAM J:

8 I agree the appeal must be dismissed.

9 The appellant has the misfortune today to be unrepresented, but the application before the Refugee Review Tribunal was taken forward on his behalf by solicitors, and different solicitors acted and appeared for him before Branson J. Her Honour dealt with the points taken on his behalf in support of the grounds under s 476(1) of the Migration Act 1958 on that occasion. Neither the written submissions (which were evidently prepared with the assistance from people who are not here today), nor anything that the appellant says in person indicates any error on the part of her Honour.

10 In the circumstances I have also looked carefully at the reasons for decision of the Tribunal. Again, nothing that has been said today or in those reasons indicates any ground available under the Act upon which the decision of the Tribunal could be set aside.

11 For these reasons I agree that the appeal must be dismissed.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated: 10 August 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 395 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	SUJANTHAN RAJENTHIRAM Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGES:	EINFELD, WHITLAM and KATZ JJ
DATE:	10 AUGUST 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

KATZ J:

12 I agree with the reasons given by the presiding Judge and by Whitlam J for dismissing the appeal.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Katz.

Associate:

Dated: 10 August 1999

The appellant appeared in person with the assistance of Dr Arumugam Kandiah (interpreter)
Counsel for the Respondent:	Mr R. P. L. Lancaster
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	10 August 1999
Date of Judgment:	10 August 1999