Nagappan v Minister for Immigration and Multicultural Affairs [2001] FCA 863

FEDERAL COURT OF AUSTRALIA

Nagappan v Minister for Immigration and Multicultural Affairs [2001] FCA 863

MIGRATION – protection visa – review of decision of Refugee Review Tribunal – whether Tribunal asked correct question – whether no evidence of fact that applicant had lived in Colombo Migration Act 1958 (Cth) s 476(1)(b)(c)(e)(g) and (4)(b) Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at [75], [78], [82] and [84] applied Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744 at [35] applied MAHADEVAN NAGAPPAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W 2 OF 2001 HEEREY J 13 JULY 2001 MELBOURNE (HEARD IN PERTH)

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 2 OF 2001

BETWEEN: MAHADEVAN NAGAPPAN

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: HEEREY J

DATE OF ORDER: 13 JULY 2001

WHERE MADE: MELBOURNE (HEARD IN PERTH)

THE COURT ORDERS THAT: 1. The application is allowed. 2. The decision of the Refugee Review Tribunal dated 12 December 2000 is set aside and the application referred to the Tribunal differently constituted for rehearing according to law. 3. The respondent pay the applicant's costs, including reserved costs. 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 2 OF 2001

BETWEEN: MAHADEVAN NAGAPPAN

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: HEEREY J

DATE: 13 JULY 2001

PLACE: MELBOURNE (HEARD IN PERTH)

REASONS FOR JUDGMENT 1 The applicant seeks review under Pt 8 of the Migration Act 1958 (Cth) of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant the applicant a protection visa. 2 The applicant is a male citizen of Sri Lanka of Tamil ethnicity. He arrived in Australia on 16 February 2000 and lodged an application for a protection visa on 1 June 2000. The application was rejected on 18 August 2000 and the decision of the Tribunal affirming that refusal was given on 12 December 2000. 3 The claims made by the applicant can be considered by reference to the decision of the Tribunal. After referring to the legislation, the terms of the Refugees Convention and judicial authorities as to the meaning of the definition of "refugee", the Tribunal summarised under the heading "Evidence" the statements made by the applicant at his unauthorised arrivals interview on 25 February 2000, in a statement of 1 June 2000 and in submissions on his behalf on 1 November 2000. The Tribunal referred to a number of documents presented on his behalf including a submission by Amnesty International dated 2 November 2000. The Tribunal then referred to the evidence given at the hearing on 2 November 2000. That summary of the hearing records a number of instances in which the Tribunal put to the applicant that he had given inconsistent versions of various events. Under the heading "Independent Information" the Tribunal summarised the history of Tamil separatism in Sri Lanka and associated violence. It referred to the position in Colombo, particularly the position of Tamils, as disclosed in country information from the Department of Foreign Affairs and Trade. There was also discussion about conditions in Jaffna. Under the heading "Findings and Reasons" and the sub-heading "General" the Tribunal stated: "The applicant claims that he has a well-founded fear of persecution by reason of his imputed political opinion, because the army and LTTE want to kill him and his race, because he is a Tamil. He claims a real chance of persecution if he returns to Bangladesh (sic) because of his imputed political opinion, his race and as a returned asylum seeker. In assessing the applicant's Convention claims, I am required to determine whether he has a well-founded fear, and if so, whether what he fears amounts to persecution for a Convention reason." 4 Then under the sub-heading "Credibility" the Tribunal referred to a number of authorities and made the following observations: "The applicant's evidence in relation to almost all aspects of his claim was vague, unconvincing, contains significant internal inconsistencies and was inconsistent with the independent information. I am unable to accept that he was truthful in giving evidence to the Tribunal and it was clear that the applicant abrogated significant parts of his evidence. The lack of credibility of the applicant's evidence, as well as my consideration of the independent evidence set out above, leads me to conclude that I am unable to be satisfied that the applicant has a well-founded fear of persecution if he returns to Sri Lanka." 5 Under the sub-heading "Nationality and Religion" the Tribunal found that the applicant is a national of Sri Lanka and of Tamil ethnicity and comes from the Trincomalee district. Under the sub-heading "Claims" the Tribunal dealt with a number of events which the applicant claimed had happened. I shall briefly summarise these, using the same sub sub-headings as the Tribunal.