Dalpatada v Minister for Immigration & Multicultural Affairs [2000] FCA 697

FEDERAL COURT OF AUSTRALIA

Dalpatadu v Minister for Immigration & Multicultural Affairs [2000] FCA 697

SHIVASHA KOSMAPATABENDIGE DALPATADU v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 118 OF 2000 KIEFEL, NORTH AND MANSFIELD JJ 26 MAY 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 118 OF 2000

BETWEEN: SHIVASHA KOSMAPATABENDIGE DALPATADU

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES: KIEFEL, NORTH AND MANSFIELD JJ

DATE OF ORDER: 26 MAY 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The appellant is to pay the respondent's cost of the application. 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 118 OF 2000

BETWEEN: SHIVASHA KOSMAPATABENDIGE DALPATADU

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: KIEFEL, NORTH AND MANSFIELD JJ

DATE: 26 MAY 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal against the decision of Whitlam J made on 24 January 2000 in which his Honour dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) brought by Shivasha Kosmapatabendige Dalpatadu, the appellant, under s 476 of the Migration Act 1958 (Cth) (the Act). The decision of the Tribunal was made on 27 May 1999 and it affirmed the decision of the delegate of the respondent, the Minister for Immigration and Multicultural Affairs, to refuse the applicant a protection visa. 2 The appellant is a Sri Lankan national of Singhalese ethnicity born on 29 November 1965. The appellant claimed before the Tribunal that as a result of her relationship with a Tamil who eventually joined the LTTE the appellant was imputed with the political opinion of being a LTTE supporter, and that the appellant's boyfriend was seeking to harm her because of her refusal to continue their relationship. 3 The Tribunal rejected the appellant's case on the basis that it did not find her a credible witness. It said at pages 26 – 7 of its decision: "Whilst the Tribunal is satisfied that the applicant may have had a relationship with a Tamil man until May 1993, it cannot be satisfied that the applicant's claim regarding her claimed arrest in May 1993 and any of the events thereafter are credible. The applicant's claims and evidence in this regard are implausible, contradictory, internally inconsistent and moreover, inconsistent with the independent evidence. In fact, given the range of inconsistencies between the applicant's application for a visa in Sri Lanka; her written claims to the Department of Immigration; her interview with the Department of Immigration; and her three hearings with the Tribunal; and the inherent implausibility in her claims and evidence, the Tribunal cannot be satisfied that the applicant has been truthful in her claims and evidence, and cannot be satisfied that she has any claim to have a well founded fear of persecution for a Convention reason. Specifically, the Tribunal does not accept as credible or plausible: · The applicant's claims and evidence regarding how and why she stopped working at the CTB [Ceylon Transport Board] and claims surrounding her application for a visa to Australia · The applicant's claims and evidence regarding the applicant's arrest in May 1993 or the existence, or use of a 'confession' against her · The applicant's claim and evidence regarding being contacted by her former boyfriend in 1995 and his warning to her · The applicant's claim and evidence regarding her former boyfriend's approach to her mother, his arrest at her mother's home, and the resulting on-going interest in the applicant's mother and interest in the applicant · The applicant's claims and evidence regarding being forced by the authorities to return to Sri Lanka · The applicant's claim and evidence regarding being arrested in November 1995 and being forced to 'confess' to supporting the LTTE · The applicant's claims and evidence regarding her former boyfriend's attempts to locate and harm her." [emphasis in original] 4 The Tribunal then gave reasons rejecting the appellant's claims in respect of each of the matters referred to in the dot points in the passage extracted in the previous paragraph of these reasons. The Tribunal concluded at pages 33 – 34 as follows: "Taken as a whole, the Tribunal cannot be satisfied that the applicant has been truthful in her claims and evidence to the Tribunal. The Tribunal has found the applicant to be completely lacking in credibility in her central claims to be a refugee namely: · That as result of her relationship with a Tamil who eventually joined the LTTE, the applicant has been imputed with a political opinion of being an LTTE supporter. · That the applicant's former boyfriend is now seeking to harm her because of her refusal to continue to have a relationship with him. The Tribunal has found the applicant to be without credibility in other aspects of her claims and evidence namely; the applicant having misled the Australian High Commission in Sri Lanka, the Department of Immigration and the Tribunal in matters relating to why she obtained her visa in the manner she did; the applicant's arrest in May 1993 or the existence, or use of, a 'confession' against her; being contacted by her former boyfriend in 1995 and his warning to her; her former boyfriend's approach to her mother, his arrest at her mother's home, and the resulting on-going interest in the applicant's mother and interest in the applicant; being forced by the authorities to return to Sri Lanka; being arrested in November 1995 and being forced to 'confess' to supporting the LTTE. Given the significant adverse findings in credibility in regard to the matters mentioned above, the Tribunal cannot accept as credible the applicant's claim that the Sri Lankan authorities have any on-going interest in her whatsoever. At the conclusion of the hearing (24 February 1999) the Tribunal pointed out to the applicant that there were numerous contradictions in her claims at various stages in the refugee process, and noted the overall implausibility of her claims and their lack of consistency with the independent evidence. The applicant was given the opportunity to clarify the contradictions regarding the various claims that she has made, and did so through her adviser. The Tribunal has given careful consideration to these responses, but cannot be satisfied that they have clarified the significant and numerous contradictions and implausibilities in any meaningful way." [emphasis in orginial] 5 The appellant argued two grounds of appeal. Both arguments were rejected by Whitlam J at first instance. The first ground alleged a failure by the Tribunal to comply with s 430(1)(c) and the second alleged a failure by the Tribunal to comply with s 430(1)(b). Section 430(1) provides as follows: "(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based." 6 The applicant contended that the failure to comply with s 430(1) constituted a failure to observe a procedure within the meaning of s 476(1)(a) of the Act. This proposition is a matter of contention at present as there are conflicting decisions of Full Courts on the issue. We will consider this appeal without adding to the debate by assuming in the appellant's favour that a failure to observe s 430(1) constitutes a failure to observe a procedure within the meaning of s 476(1)(a).