Kanapathipillai v Minister for Immigration & Multicultural Affairs [2001] FCA 1220

FEDERAL COURT OF AUSTRALIA

Kanapathipillai v Minister for Immigration & Multicultural Affairs [2001] FCA 1220

JEGATHEESWARAN KANAPATHIPILLAI v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V98 of 2000

RYAN J

31 AUGUST 2001

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V98 of 2000

On remittal from the High Court of Australia

BETWEEN: JEGATHEESWARAN KANAPATHIPILLAI

Applicant

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: RYAN J

DATE OF ORDER: 31 AUGUST 2001

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. THAT insofar as the applicant relies for the issue of a writ of mandamus, prohibition or certiorari or an injunction on the grounds referred to in paragraph 2 of the Order of the High Court of Australia made by Hayne J on 23 November 1999, the application be dismissed. 2. THAT the applicant pay the respondent's costs of the proceedings in this Court, such costs to be taxed in default of agreement. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V98 of 2000

On remittal from the High Court of Australia

BETWEEN: JEGATHEESWARAN KANAPATHIPILLAI

Applicant

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: RYAN J

DATE: 31 AUGUST 2001

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The applicant entered Australia on 6 March 1996 travelling on a Sri Lankan passport containing a three month Australian visitor visa issued in Riyadh on 21 January 1996. He is a Sri Lankan citizen of Tamil ethnicity and is married to an ethnic Sinhalese national of Sri Lanka. 2 An application for a protection visa was lodged by the applicant with the Department of Immigration and Ethnic Affairs ("the Department") on 15 April 1996. A written statement and further supporting documents were subsequently submitted by the applicant in May 1996. 3 On 23 August 1996 a delegate of the respondent Minister ("the Minister") refused the applicant a protection visa and determined that he was not a person to whom Australia had protection obligations under the Convention relating to the Status of Refugees ("the Convention"). The applicant applied for review of the delegate's decision to the Refugee Review Tribunal ("the Tribunal") on 13 September 1996 and submitted a statutory declaration in support of that application on 16 December 1996. The Tribunal heard the application on 18 February 1997 and, after the hearing, accepted a written submission made by the applicant on 28 February 1997. The decision of the delegate not to grant a protection visa to the applicant was affirmed by the Tribunal on 2 April 1997. 4 The applicant filed an application in the High Court for prerogative relief on 28 February 1997. On 23 November 1999 and in accordance with the provisions of Pt 8 of the Migration Act 1958 ("the Act"), Hayne J ordered that: 1. The Second Respondent DO SHOW CAUSE WHY A WRIT OF MANDAMUS, PROHIBITION OR CERTIORARI OR AN INJUNCTION should not be issued out of this Court directed to the Second Respondent in respect of the decision made by the Second Respondent on the 2nd day of April 1997 in the said matter upon the grounds that:- (a) the Second Respondent failed properly to exercise his jurisdiction in that the rules of natural justice or procedural fairness were breached, or alternatively failed to take relevant considerations into account, in that in making the decision the Second Respondent failed to make all due and proper inquiries as to the truth of the claims of the Prosecutor and in particular, failed to utilise mechanisms available within the Tribunal, whereby the Prosecutor's claims as to the current situation in Sri Lanka and the impact of that situation upon him could have been readily assessed. (b) the Second Respondent misconstrued the test of a "real chance" of persecution in that his decisions were predicated primarily upon the approach and the assessment adopted as to the credibility of the Prosecutor. (c) the Second Respondent, in all the circumstances of the Prosecutor's case adopted an unduly narrow construction of the relevant convention reasons (race and political opinion) by finding that the Applicant was not at risk of being persecuted merely because the Prosecutor is Tamil. 2. There be remitted to the Federal Court of Australia that part of the matter pending in this Court in which the applicant seeks a writ of mandamus, prohibition or certiorari or an injunction against an officer of the Commonwealth on the grounds that:- (a) the Refugee Review Tribunal ("the Tribunal") failed to observe the procedures that were required by the Migration Act 1958 (Cth) ("the Act") or the regulations under the Act to be observed by the Tribunal in connection with the making of the decision challenged in these proceedings; (b) the Tribunal did not have jurisdiction to make the decision it did; (c) the Tribunal's decision was not authorised by the Act or the regulations under the Act; (d) the Tribunal's decision involved an error of law, being an error involving an incorrect application of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision. 5 In consequence of the remitter by par 2 of Hayne J's order, the applicant, on 11 July 2000, filed particulars in this Court of the grounds relevant to the relief available here.