Seneviratne v Minister For Immigration & Multicultural Affairs [1999] FCA 121 (13 April 1999)

Last Updated: 28 April 1999

CATEGORY: NO QUESTION OF PRINCIPLE

FEDERAL COURT OF AUSTRALIA

Seneviratne v Minister For Immigration & Multicultural Affairs [1999] FCA 121

KANUWANA PATHIRANHELAGE SHANE CLARENCE SENEVIRATNE v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

NG1328 of 1998

WILCOX J

13 APRIL 1999

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG1328 of 1998

BETWEEN:	KANUWANA PATHIRANHELAGE SHANE CLARENCE SENEVIRATNE Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent
JUDGE:	WILCOX
DATE OF ORDER:	13 APRIL 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The Application be dismissed.

2. The applicant 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
NEW SOUTH WALES DISTRICT REGISTRY	NG1328 of 1998

BETWEEN:	KANUWANA PATHIRANHELAGE SHANE CLARENCE SENEVIRATNE Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE:	WILCOX
DATE:	13 APRIL 1999
PLACE:	SYDNEY

EXTEMPORE REASONS FOR JUDGMENT

1 WILCOX J: Application has been made to the Court for review of a decision of the Refugee Review Tribunal to refuse an application for a protection visa made by the applicant, Kanuwana Pathiranhelage Shane Clarence Seneviratne. Although the application refers to errors of law and failure to observe procedures required by the Migration Act 1958 , Mr Seneviratne has not put any submissions along those lines.

2 Mr Seneviratne appears on his own behalf with the assistance of an interpreter. He has raised two matters. First, he says some of the evidence he gave to the Tribunal was not correctly communicated by the interpreter employed for that purpose by the Tribunal. This claim was made to the Tribunal after the hearing, but before the decision of the Tribunal member refusing the application. It was made in the context of the applicant forwarding to the Tribunal a document clarifying some aspects of his evidence. In his reasons for decision, the Tribunal member referred to this document and took into account the claims made in it. The Tribunal member also expressed the opinion that the matters that had been clarified were comparatively unimportant and said the suggested interpretation errors did not affect his view of the case as a whole. The Tribunal member also noted that the appellant had been represented at the Tribunal hearing by a migration agent who spoke Sinhalese, his first language. At the hearing this representative made no complaint regarding the standard of interpretation.

3 If it appeared there was a serious problem about the quality of interpretation at a Tribunal hearing this might give rise to a procedural defect requiring this Court to set aside the Tribunal's decision and remit the matter for a fresh hearing. However, this is not such a case.

4 Mr Seneviratne indicated today that, after he had sent in the clarifying document, this clarified all the matters that had not been properly interpreted at the oral hearing. It is clear that the Tribunal member took into account all the material in that document. Even so, the Tribunal member was unpersuaded of the history upon which Mr Seneviratne relied in claiming a fear of persecution for political opinion if returned to Sri Lanka.

5 As I have pointed out to Mr Seneviratne, this Court is not entitled to review the Tribunal's conclusions about the facts of the case. In that situation, it is appropriate for me to say only that Mr Seneviratne's concession demonstrates there is now nothing in the point about the interpretation at the oral hearing.

6 The other matter raised by Mr Seneviratne is that, since arriving in Australia in 1995, he has suffered two work related injuries. According to a document handed to me today, in November 1995 he suffered a crush injury causing a compound fracture of the radius and ulna of his right dominant arm. He received treatment at Liverpool District Hospital and, subsequently, by various doctors and had physiotherapy. The same document claims a second injury at work on 5 January 1998, when Mr Seneviratne fell from a cage which had been elevated by a forklift. He sustained a severe injury to his right knee and re-injured his right wrist. Mr Seneviratne has not returned to work since the second injury and has been supporting his family on workers' compensation payments. He fears, as a result of his injuries, he will not be able to obtain employment of the sort which he had previously undertaken; labouring work.

7 I am sympathetic to Mr Seneviratne on account of his injuries. I appreciate that he worked in labouring jobs in Sri Lanka and, apparently, after his arrival in Australia and that these injuries may cause him considerable problems in obtaining work in the future. However, these are not matters which I can take into account in deciding the present application. The task for the Refugee Review Tribunal was to determine whether Mr Seneviratne was a refugee within the meaning of the Convention on Refugees. The task for this Court is to consider whether the Tribunal fell into any legal error or failed to provide a fair hearing to Mr Seneviratne. It will be obvious that Mr Seneviratne's work related injuries, and his prospects of future employment, are matters quite separate from the tasks of the Tribunal and the Court. I must disregard these matters.

8 There is no ground for the intervention of the Court, apparent in the reasons of the Tribunal Member or in anything put to me today by Mr Seneviratne. It follows that I must dismiss the application.

[There was discussion about costs.]

9 Mr Johnson seeks the usual order as to costs. He has told me that his instructing solicitor wrote a letter some time ago to Mr Seneviratne warning him that an application would be made for an order for costs if the application for review was dismissed. Particularly under those circumstances, I feel I have no option but to take the usual course and make an order for costs in favour of the successful party.

10 However, I record the submission put to me by Mr Seneviratne (through the interpreter) that, for the sake of humanity, there ought to be no costs order. Mr Seneviratne says he is supporting himself, his wife, their two school age children and his mother on his worker's compensation payments. If this is correct, any action to enforce the costs order, out of the worker's compensation payments, would be likely to cause severe hardship to members of the family. I am confident the Minister, and his advisers, will bear this in mind in deciding whether or not to take action to enforce the order for costs. However, that is a matter for them to determine, not for me.

11 The order I must make is that the application be dismissed with costs and I so order.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated: 13 April 1999

Applicant in person
Counsel for the Respondent:	G T Johnson
Solicitor for the Respondent:	Australian Government Solicitors
Date of Hearing:	13 April 1999