NOT FOR DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA ake ) J GZ NEW SOUTH WALES DISTRICT REGISTRY ) No. G.327 of 1986 ) GENERAL DIVISION ) BETWEEN: SKANDA KUMARA SIDAMPARAM Applicant AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent CORAM : WILCOX J PLACE: SYDNEY DATE: 12 AUGUST 1986 MINUTES OF ORDER THE COURT ORDERS THAT: 1. The interim order made on 7 August 1986 be dissolved. -2. The costs of the applications for interlocutory relief made on 7 August 1986 and 12 August 1986 be the respondent's costs in the principal proceedings. w Note: 2. 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 ) GENERAL DIVISION ) BETWEEN: SKANDA KUMARA SIDAMPARAM Applicant AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent CORAM : WILCOX J PLACE: SYDNEY DATE: 12 AUGUST 1986 EXTEMPORE REASONS FOR JUDGMENT This is an application for a further extension of an 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. 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 8.36A of the Migration 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. He 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. He had worked for the railways until some time in 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. Mr David Begg, the Amnesty International Refugee Co-ordinator in Sydney, became aware of Mr Sidamparam's case. On 28 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, 5 August. He had spoken to an officer of the DORS Secretariat, Miss Carmen Kovacs, about the meeting and had indicated that he was sending material for the meeting. 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 Mr 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. 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, 4 August, the committee decided unanimously to recommend refusal of refugee status. This recommendation was conveyed to a delegate of the Minister, who on 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 upon 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 at 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 until today. There is now much more information before the Court as to what occurred. The most significant new factor is that the committee met again on 1] 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 to remove the applicant from Australia pursuant to s.36A of the Act. 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.5(1)(a) of the Administrative Decisions (Judicial Review) Act, and an improper exercise of power, s.5(1)(e), and, in particular, that the committee exercised its power in accordance with a predetermined policy and without regard to the merits of the case, s.5(2)(£). I see no basis for an argument that there was a 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 has been put in support of the proposition that there was a denial of natural justice is 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 previsions of s.6A(1)(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 in ~ Australia without a valid temporary entry permit. I say this 8. because the penultimate sub-paragraph in para.2 speaks about the necessity for a 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 applicant would feel that there had only been sympathetic reatment 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 general 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 any 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. I 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. Uniess 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 circumstance. 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 permit 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 in 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 of his Honour Mr Justice Wilcox. Associate: Dice erek. Date: 27 August 1986 Counsel for the Applicant: Solicitors for the Applicant: Counsel for the Respondent: Solicitors for the Respondent: Date(s) of hearing: Mr G Travers Morgan Ardino & Co Mr ¢C J Stevens Australian Government Solicitor 7 and 12 August 1986