Dambagolla Arachchige v Minister for Immigration & Multicultural Affairs [2001] FCA 121 (23 February 2001)

Last Updated: 23 February 2001

FEDERAL COURT OF AUSTRALIA

Dambagolla Arachchige v Minister for Immigration & Multicultural Affairs [2001] FCA 121

MIGRATION - Refugee Review Tribunal - whether the RRT constructively failed to exercise jurisdiction by failing to adequately investigate - where the RRT had sought extra information from a third party who had not replied - whether the RRT should have waited longer than two months for a reply

MIGRATION - Refugee Review Tribunal - whether the RRT erred by not referring to a piece of evidence when deciding an issue - where the RRT referred to other evidence pertinent to the particular issue

Migration Act 1958 s 476(1)(a)

Anthonypillai v Minister for Immigration and Multicultural Affairs [2000] FCA 1368 cited Minister for Immigration and Multicultural Affairs v Rajalingham [1999] FCA 719; (1999) 93 FCR 220 cited

DON PMW DAMBAGOLLA ARACHCHIGE v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 750 OF 2000

HILL, WHITLAM AND TAMBERLIN JJ

SYDNEY

23 FEBRUARY 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 750 OF 2000

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	DON PMW DAMBAGOLLA ARACHCHIGE APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	HILL, WHITLAM & TAMBERLIN JJ
DATE OF ORDER:	23 FEBRUARY 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The appeal be dismissed with 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	N 750 OF 2000

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	DON PMW DAMBAGOLLA ARACHCHIGE APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	HILL, WHITLAM & TAMBERLIN JJ
DATE:	23 FEBRUARY 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal from a decision of Wilcox J affirming a decision of the Refugee Review Tribunal ("the RRT") which in turn affirmed a decision of a Ministerial Delegate refusing an application for a protection visa by the appellant and family members.

2 The appellant claims that he is a "refugee" because he has a well-founded fear that if returned to Sri Lanka there is a real chance that he will be persecuted for his political opinion. This risk of persecution is said to come from three sources, namely the Liberation Tigers of Tamil Eelam ("LTTE"), the Janatha Vimukthi Peramuna ("JVP") and the Peoples' Alliance ("PA"). The RRT rejected this contention.

3 On the hearing of the appeal the appellant sought leave to file an Amended Notice of Appeal and argue grounds not argued before Wilcox J. This application is the subject of a separate judgment. The Court granted leave in respect of all new grounds except the no-evidence ground. This was essentially because the material necessary to properly consider such a ground was not before the Court.

4 The proceedings before the RRT took the following course. On 8 October 1998 the appellant lodged a detailed Statutory Declaration setting out his claims and factual background to those claims. The matter first came on for hearing before the RRT on 9 October 1998 but this hearing was terminated due to the appellant stating that he was experiencing interpreting problems. The hearing resumed on 12 October 1998. On 26 October 1998 the appellant lodged a further Statutory Declaration and produced a document dated 23 October 1998 on the letterhead of the Mahajana Eksath Peramuna Party (the "MEP") which claimed that the appellant's father had been threatened and that the appellant also had been threatened. After the resumed hearing there was then a very substantial delay until 15 November 1999 when the RRT endeavoured to contact the MEP in Sri Lanka to confirm whether the document of 23 October 1998 on the letterhead of the MEP was genuine. The RRT decision records that there were a number of faxes and telephone calls in relation to this inquiry but no response was received by the time of the RRT's decision on 27 January 2000. In the interim, on 16 November 1999, the RRT wrote to the appellant apologising for the thirteen month delay and reminded him of the matters that were raised during the hearing and giving him a further opportunity to respond. A response was made by the appellant on 12 December 1999.

5 The first submission made on this appeal is that the RRT wrongly interpreted the law in that it failed to give proper, genuine and realistic consideration to the authenticity of several documents produced by the appellant purportedly originating from the MEP. The appellant claimed that he had been an active member of this party which has been opposed to the LTTE. We understand that this submission is based on alleged non-compliance with s 476(1)(a) of the Migration Act 1958 ("the Act") concerning procedures because it is suggested that there had been a constructive failure to exercise jurisdiction in not performing its statutory function: see Anthonypillai v Minister for Immigration and Multicultural Affairs [2000] FCA 1368.

6 The contention is that the RRT knew that the MEP was, at the time when the inquiries were made in mid-November 1999, busy with a Presidential election and that the RRT should have anticipated a longer delay in obtaining a response. It is said that the RRT should have obtained or made further efforts to obtain a response before reaching a decision. This is said to be so particularly because it must be taken that the RRT considered the inquiry to be relevant and important. Accordingly, the RRT did not discharge its statutory duty.

7 The RRT decision records that it endeavoured to contact the MEP to confirm whether documents said to emanate from the MEP, including the letter of 23 October 1998, were, in fact genuine. It also appears from the decision that, in addition to a letter sent by the RRT on 16 November 1999, there were a number of faxes and telephone contacts by it in an attempt to obtain a response. Despite these efforts no response was received prior to the RRT decision which was given on 27 January 2000 more than two months after the inquiries had been initiated. The RRT considered that if there had been any substance in the claims that these documents were genuine then it was likely that a reply would have been received within this period. The RRT referred to the lack of response as being one of a number of relevant considerations bearing on the respondent's lack of credibility. There were however a number of separate matters leading to the conclusion of non-genuineness in relation to the documents produced. In our view, due consideration was given by the RRT to the genuineness of the documents produced by the appellant and it was open for the RRT to infer from the anomalies and inconsistencies in the evidence to which it referred and from its independent finding as to the lack of credibility of the applicant in relation to other matters, that the absence of any response within the two month period was a significant consideration. Due attention was in our view given to the MEP documents by the RRT. This ground has not been made out.

8 Next, Counsel for the appellant submits that the RRT wrongly attributed to the appellant a lack of familiarity with leadership of the LTTE based on a statement that was later corrected by him after the RRT had pointed out the inaccuracy. This submission is said to be based on a misreading by the RRT of a Statutory Declaration by the appellant which referred to Mr Kuttimani of the LTTE as the most prominent Tamil leader. It was an important part of the appellant's case that he had played a role in the capture of Mr Kuttimani and that as a consequence of his having been involved in this capture there was a risk of persecution by the Tamils. It is said that the RRT mis-stated the position when it said that he had not corrected his reference to Mr Kuttimani as an LTTE leader prior to the RRT hearing. The fact is that Mr Kuttimani was a leader of the Tamil Eelam Liberation Organisation party ("TELO") which had been an ally of the LTTE prior to the capture of Mr Kuttimani but which had later separated from the LTTE. The appellant says that on a proper reading of his Statutory Declaration he was stating that Mr Kuttimani was the most prominent Tamil leader at the time who was working very closely with the LTTE. Therefore, it is said it was wrong to say that it was only after the mistake was pointed out to him at the RRT hearing that a correction was made. However, in his initial statement of 9 October 1996 the appellant referred to Mr Kuttimani as a prominent LTTE leader and also in his Statutory Declaration he also referred to Mr Kuttimani as "second in command" to the LTTE leader. The fact was that the appellant had made this incorrect assertion and it was inconsistent with his later statements.

9 The RRT then applied the "even if am wrong" approach in relation to the involvement of the appellant in the capture of Mr Kuttimani and found that during the fifteen year period of his continued residence in Sri Lanka he had not been harmed, and there was no real risk of persecution. Whilst there are limits on the appropriateness of this "even if I am wrong" approach (see Minister for Immigration and Multicultural Affairs v Rajalingham [1999] FCA 719; (1999) 93 FCR 220 at 240-241 per Sackville J), in the present case, the RRT in considering this alternative refers to other matters of substance which provide a basis on which it was open to conclude that that there was no real chance of persecution of the appellant or his family for a Convention reason: see par 18 of the RRT reasons). In our view the approach of the RRT to the statements as to the role of Mr Kuttimani was open on the evidence and this ground has not been established.

10 It is then submitted that the RRT ought to have made a specific finding in respect of an article in 1988 from a Sri Lankan publication bearing the LTTE symbol, which indicated a continuing interest on the part of the LTTE in the "eradication of the naval officers" involved in Mr Kuttimani's capture. The appellant's case was that he had been a naval officer involved in the capture, although this was not accepted.

11 There is no necessity for the RRT to make a finding with respect to every significant item of evidence in relation to a particular issue in the proceedings. In this case the RRT relied on the lengthy residence period during which he was not harmed between the 1981 capture and 1996 when he left Sri Lanka as strongly supportive of a lack of interest by the LTTE. The weighting of apparently conflicting material is the function of the RRT and it is not for this Court to decide such matters of fact and degree. It was open for the RRT on this issue to reach this conclusion without making a specific finding on the amount of weight to be attributed to the 1998 article. The article is simply one piece of material in an extensive range of documents and surrounding circumstances which the RRT was entitled to take into account.

12 For the above reasons we do not consider that any error of law has been shown on the part of either the RRT or the primary Judge. Nor are we persuaded that any reviewable error of law has been shown based on any of the grounds set out in the Amended Notice of Appeal which were not before the primary Judge. The appeal is therefore dismissed with costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of The Court.

Associate:

Dated: 23 February 2001

Counsel for the Appellant:	C Jackson
Counsel for the Respondent:	R Beech-Jones
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	14 February 2001
Date of Judgment:	23 February 2001