Perera v Minister for Immigration & Multicultural Affairs [2001] FCA 59

FEDERAL COURT OF AUSTRALIA

Perera v Minister for Immigration & Multicultural Affairs [2001] FCA 59

MIGRATION – application for protection visa – Tribunal's conclusions inconsistent with findings of fact – illogical conclusion – reasoning of Tribunal to be shown to be rational – failure of Tribunal to fulfil statutory requirements of review process. Migration Act 1958 (Cth) ss 5(1), 36(2), 65, 476, 476(1)(a), (b), (c), (e), (g) Migration Regulations 1994 (Cth)

Dornan v Riordan (1990) 24 FCR 564 referred to Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 applied PATHIRAGE DON MAHINDA PERERA v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS W 58 OF 2000 LEE J 9 FEBRUARY 2001 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 58 OF 2000

BETWEEN: PATHIRAGE DON MAHINDA PERERA

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: LEE J

DATE OF ORDER: 9 FEBRUARY 2001

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The decision of the Refugee Review Tribunal be set aside. 2. The matter be remitted to the Tribunal for reconsideration according to law. 3. The respondent pay the applicant's costs 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

WESTERN AUSTRALIA DISTRICT REGISTRY W 58 OF 2000

BETWEEN: PATHIRAGE DON MAHINDA PERERA

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: LEE J

DATE: 9 FEBRUARY 2001

PLACE: PERTH

REASONS FOR JUDGMENT 1 The applicant applies under s 476 of the Migration Act 1958 (Cth) ("the Act") for review of a decision made by the Refugee Review Tribunal ("the Tribunal") on 17 March 2000 that a "protection visa" not be granted to the applicant. 2 The applicant is a citizen of Sri Lanka and is now 38 years of age. He arrived at Perth Airport in March 1997 and entered Australia on a "visitors visa". His wife and two daughters, then aged 5 and 2, had arrived in Western Australia on a "visitors visa" in December 1995. His wife's sister was an Australian citizen who resided in Western Australia. The applicant applied for a protection visa for himself and family in July 1997. 3 Section 65 of the Act provides that if after considering an application for a visa the respondent ("the Minister") is satisfied that, inter alia, criteria prescribed by the Act or Migration Regulations 1994 (Cth) ("the Regulations") have been satisfied, the Minister is to grant the visa. 4 Under s 36(2) of the Act, a criterion for the grant of a protection visa is that the applicant be a person to whom Australia has protection obligations under the "Refugees Convention" as amended by the "Refugees Protocol", referred to collectively hereafter as "the Convention". Section 5(1) of the Act defines the "Refugees Convention" as the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, and the "Refugees Protocol" as the Protocol relating to the Status of Refugees done at New York on 31 January 1967. 5 The Tribunal, carrying out the duties of the Minister, was not satisfied that the applicant is a person to whom Australia has protection obligations under the Convention. 6 The grounds of review relied upon by the applicant were the failure of the Tribunal to observe procedures required by the Act to be observed (s 476(1)(a)), and an error of law by the Tribunal in the making of that decision (s 476(1)(e)). 7 Counsel for the applicant submitted, firstly, that the Tribunal erred in law and failed to exercise the function committed to it by the Act when it stated that there was "no evidence before it to establish that the break-in, looting and damage of [the applicant's] house…was motivated by either [the applicant's] actual or imputed political opinion" when there was material before the Tribunal from which such an inference could be drawn. 8 The Tribunal accepted that until 1991 the applicant had been a "strong supporter" of the United National Party ("UNP"). At that time the UNP had governed Sri Lanka for some years. The applicant was involved in distributing leaflets, pamphlets and posters and in fundraising and recruiting members for the party. He also acted as a "bodyguard" when the local UNP Member of Parliament, Mr Athulathmudali, campaigned in that constituency. The applicant was a Chief Organiser of the local branch of the UNP. 9 In 1991 the applicant supported the formation by Mr Athulathmudali of a breakaway party, the Democratic United National Front ("DUNF"). Thereafter, the applicant performed similar functions for the DUNF to those he had carried out as a supporter of the UNP. 10 The Tribunal accepted that the applicant's work for the UNP was well-known and had attracted harassment and death threats from supporters of the opposing Sri Lanka Freedom Party ("SLFP") and that his home had been stoned and "vandalised".