Fernando v Minister for Immigration & Multicultural Affairs [2000] FCA 1182

FEDERAL COURT OF AUSTRALIA

Fernando v Minister for Immigration & Multicultural Affairs [2000] FCA 1182 ADMINISTRATIVE LAW – Migration – Claim for recognition as refugee - Sri Lankan national of Singhalese extraction – Whether Refugee Review Tribunal failed to indicate whether it accepted the appellant's claim to have had a long association with Tamils.

Migration Act 1958, s430(1)(b)

SONALI DINUSHA FERNANDO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N412 of 2000 WILCOX, R D NICHOLSON and LEHANE JJ SYDNEY 17 AUGUST 2000

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N412 of 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: SONALI DINUSHA FERNANDO

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: WILCOX, R D NICHOLSON and LEHANE JJ

DATE OF ORDER: 17 AUGUST 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant, Sonali Dinusha Fernando, pay the costs of the respondent, Minister for Immigration and Ethnic Affairs. 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 N412 of 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: SONALI DINUSHA FERNANDO

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: WILCOX, R D NICHOLSON and LEHANE JJ

DATE: 17 AUGUST 2000

PLACE: SYDNEY

EXTEMPORE REASONS FOR JUDGMENT 1 WILCOX J: This is an appeal from an order made by a Judge of the Court, Madgwick J, dismissing with costs an application to review a decision of the Refugee Review Tribunal. 2 The application was brought by Sonali Dinusha Fernando, who is a Sri Lankan citizen of Singhalese extraction. She claimed to have a fear of persecution, if returned to Sri Lanka, on the basis of perceived political opinion. 3 The case put before the Tribunal was that the appellant had had a close involvement with members of the Tamil community over a number of years and there was therefore a perception that she was a supporter of the LTTE, a militant Tamil organisation. The appellant claimed that, if she returned to Sri Lanka, she was likely to be persecuted because of this perception. It is important to note the appellant does not claim she is in fact a supporter of the LTTE; indeed, as I understand her case, she disapproves of that organisation and its activities. 4 The Tribunal member considered the evidence of the appellant, as to her association with the Tamil community. The appellant had referred to having a number of Tamil friends and relatives. She spoke particularly of a close male friend, who was a Tamil, although she said she spoke to him in Singhalese. The Tribunal member referred to this friend as "CCCC". The appellant also gave evidence of having worked in a Tamil travel agency. 5 The Tribunal member questioned the appellant about her knowledge of the Tamil language. She said she knew "a few words" of that language. This was an important element in the Tribunal failing to be satisfied of the truthfulness of the claims made by the appellant. 6 When the matter was before Madgwick J, numerous grounds were argued. They all failed. 7 On the appeal, only one ground was argued. In the amended Notice of Appeal, the appellant claimed that his Honour erred in not finding that the Tribunal had made an error under s476(1)(a) of the Migration Act 1958. Particulars were given: "The Tribunal did not comply with s 430(1)(b) of the Act to the extent that it failed to state whether it had failed to reject or accept the evidence going to the issue as to whether the appellant had a long association with Tamils, which issue was a material issue." I think the intention was to say the Tribunal failed to indicate whether it rejected or accepted the evidence. 8 I accept that the extent of the association between the appellant and the Tamil community was a material issue in the Tribunal's determination, but I do not think it is correct to say the Tribunal failed to indicate whether it rejected or accepted her evidence of a close association with members of the Tamil community. 9 The findings of the Tribunal were set out relatively briefly, but they clearly indicated the Tribunal's view about the significant issues. The findings commence with this paragraph: "The Tribunal is not satisfied that the Applicant was a truthful witness. In particular, the Tribunal is not satisfied that the applicant had any significant involvement with Tamils in Sri Lanka." This paragraph directly deals with the matter about which it is said the Tribunal failed to indicate its position. The paragraph makes plain that the Tribunal was not satisfied of the claimed significant involvement of the appellant with the Tamil community. The Tribunal went on to set out reasons for that conclusion. 10 In her submissions to us, counsel for the appellant said, I think rightly, that the evidence that was given to the Tribunal related to four categories of claimed association between the appellant and the Tamil community: first, an association which involved Tamil friends and relatives, with whom the appellant claimed to converse in English; second, an association with CCCC, with whom the appellant claimed to speak Singhalese; third, association with Tamils in the travel agency and fourth, some association in relation to the travel business outside the travel agency. 11 I do not think the Tribunal was bound to deal in detail with each of the claimed categories of association. It is worth bearing in mind the comment by McHugh J, in Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1, 168 ALR 407 at para 67: "If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence." 12 That statement was adopted and applied by the Full Court of this Court in Minister for Immigration and Multicultural Affairs v Singh (2000) FCA 845 at para 46: "There is no specific requirement in s 430 for the RRT to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding it made." 13 In the present case, the Tribunal did deal, although shortly, with each of the four categories of claimed association. After the paragraph which I have already quoted, the Tribunal said this: "The Tribunal is not satisfied that the applicant has close friends or relatives who are Tamil or that she did any appreciable amount of business with Tamils, or that she had a close long term relationship with CCCC, a young Tamil. If any of this were true, the Applicant would have developed at least some facility in the Tamil language. The Tribunal notes that the Applicant passed her school examinations in English and has further developed her skills here. The Tribunal does not accept that she was incapable of learning any Tamil, or that she could have had the wide range of contacts with Tamils which she claims, without picking up more of their language." It will be noted these two paragraphs cover the first two categories referred to by counsel for the appellant. 14 The Tribunal went on: "The Tribunal considers that it is inconceivable that she could have done all the business with Tamils which she claims without speaking any Tamil. It is improbable that she could have encouraged Tamils to approach her for assistance without speaking any Tamil. It is inconceivable that she could have been close friends with CCCC, a young Tamil man without learning to speak any more of his language than hello or good morning." I think this paragraph covers the third and fourth categories referred to by counsel. 15 It seems to me there is merit in the proposition, advanced in written submissions made on behalf of the Minister, that in this case the Tribunal went somewhat further than it was bound to do. 16 I think the appellant's real problem with the Tribunal's judgment, apart from her understandable disappointment in the result, is that she disagrees with the Tribunal's view about the facts of the matter. I can understand that reaction; but the facts are, of course, a matter for the Tribunal to determine, not for this Court. 17 I do not think the error attributed to the Tribunal is made out. It follows that his Honour did not err in rejecting the case put to him on behalf of the appellant. Accordingly, the appeal ought to be dismissed. I think the costs should follow the event. 18 NICHOLSON J: I also agree that the Tribunal made findings on questions of fact that were central to the case raised by the material and evidence before it: see Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845. Consequently, the ground of appeal and the amended Notice of Appeal cannot be made out. 19 The Tribunal itself, in its reasons, appreciated the centrality of the findings which it made and expressly characterised them as such. Any illogicality in the Tribunal's reasons is not a matter which is raised by the sole ground of appeal, nor would it be a matter of which we could take cognisance pursuant to the jurisdiction under s476(1) of the Migration Act 1958. I agree with the reasons therefore of the presiding judge. 20 LEHANE J: I also agree with the reasons given by the presiding judge. 21 WILCOX J: The orders of the Court will be the appeal be dismissed and the appellant pay the respondent's costs of the appeal. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Wilcox, R D Nicholson and Lehane.