Thuraisamy v Minister for Immigration & Multicultural Affairs [1999] FCA 1632

FEDERAL COURT OF AUSTRALIA Thuraisamy v Minister for Immigration & Multicultural Affairs [1999] FCA 1632 MURALEEKARAN THURAISAMY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N923 of 1999 WILCOX, EINFELD and TAMBERLIN JJ 18 NOVEMBER 1999 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N923 of 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: MURALEEKARAN THURAISAMY

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: WILCOX, EINFELD and TAMBERLIN JJ

DATE OF ORDER: 18 NOVEMBER 1999

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant, Muraleekaran Thuraisamy, pay the costs of the respondent, Minister for Immigration and Multicultural 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 N923 of 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: MURALEEKARAN THURAISAMY

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: WILCOX, EINFELD and TAMBERLIN JJ

DATE: 18 NOVEMBER 1999

PLACE: SYDNEY

EXTEMPORE REASONS FOR JUDGMENT 1 THE COURT: Muraleekaran Thuraisamy has appealed against a decision of a judge of the Court, Lindgren J, dismissing with costs his application for review of a decision of the Refugee Review Tribunal. The Tribunal decided that Mr Thuraisamy was not a refugee within the meaning of the Convention on Refugees and affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs, the respondent to the appeal, not to grant a protection visa. 2 A number of contentions were put to Lindgren J by way of challenge to the Tribunal's decision. His Honour held many of these matters did not fall within s476 of the Migration Act 1958, which specifies the grounds on which this Court may interfere with a decision of the Tribunal. We agree. Most of the submissions put to his Honour related entirely to matters of fact. 3 One factual contention was pressed before us. However, in refugee cases, the Refugee Review Tribunal is the arbiter of the facts. Unless, in determining the facts, the Tribunal falls into a legal or procedural error covered by s476 of the Act, the Court is powerless to intervene. We see no advantage in canvassing the factual issue put to us. It is sufficient to indicate its nature. 4 The Tribunal found the appellant did not genuinely fear he would be persecuted if he were to return to his native Sri Lanka. The Tribunal gave a number of reasons for that conclusion. One of those reasons was that, in recent years, the appellant had made four departures from, and three returns to, Sri Lanka. The appellant contends it was wrong to attribute significance to that fact; there was an explanation of his having taken that course that is consistent with him having a fear of persecution. Perhaps so, but that is entirely an issue of fact. It does not fall within s476 of the Act. 5 A submission that does fall within s476 is that the Tribunal misunderstood the Convention definition of "refugee". If this error occurred, it would be an error of law covered by s476(1)(e) of the Act. If it had, or might have had, a material effect on the outcome of the claim, that would justify the Court exercising its discretion under s481 of the Act, setting aside the decision of the Tribunal and remitting the matter to the Tribunal for rehearing. 6 At one stage in his reasons, in referring to the fact that the appellant had returned to Sri Lanka in March 1995 in order to assist his parents leave Sri Lanka for Canada, the Tribunal member said: "Nevertheless he made the trip. I accept that he may have had strong personal reasons for doing so in that he wanted to assist his parents to leave and for various reasons none of his siblings were able or willing to assist in this regard. However the fact remains that refugees are by definition people who, owing to their well-founded fear of being persecuted, are unable to return to their country of nationality, however compelling the personal reasons may be." As Lindgren J observed, there were two errors in the last sentence of this passage: the omission of any reference to being unwilling, as distinct from unable, to return to the country of nationality and the rider constituted by the last seven words. However Lindgren J thought the error did not affect the decision making process. 7 We agree. The appellant really failed at the outset. If he had no genuine fear of persecution in Sri Lanka, he was not a "refugee" within the meaning of the Convention. The Tribunal member understood this. He addressed this issue at the commencement of his findings. After detailing the evidentiary material before him, the Tribunal member set out a section of his reasons headed "Findings and Reasons for Decision". That section commenced with these two sentences: "I do not accept that the Applicant genuinely fears that he will be persecuted if he returns to Sri Lanka. I consider that his behaviour since the events which supposedly gave rise to this fear has been quite inconsistent with his claimed fear of being persecuted." 8 It is important to note that, at this stage of his reasoning, the Tribunal member was not addressing issues such as the cause of any fear of persecution - that is, whether it stemmed from a matter referred to in the Convention definition, such as race, religion, etc - or its effect - that is, whether it made the person unable or unwilling to return to his or her country of nationality. The Tribunal was concerned, at this stage, simply with the question whether or not the fear existed. If it answered that question adversely to the applicant's claim, as it did, that was the end of the matter. Any mis-statement about effect could not affect the outcome. 9 The appellant complains that the Tribunal failed to comply with its obligation under s430 of the Act to make and set out all its material findings of fact and reasons for decision. In particular, it is said the Tribunal did not say why it regarded the appellant's claims as fabrications. We disagree with this complaint. We think the Tribunal made its views clear over several paragraphs of its reasons for decision. We appreciate the appellant does not accept the Tribunal's views, but they were views about the facts clearly open on the evidence. 10 Finally, it is said the Tribunal erred in relying on the decision of Heerey J in Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 - to the effect that it is legitimate in assessing the genuineness, or at least the depth, of an applicant's claimed fear of persecution to take into account any delay by the applicant in lodging an application for a protection visa. The Tribunal member commented: "In the present case the Applicant's delay in seeking Australia's protection, coupled with the fact that he has left and returned to Sri Lanka on three occasions after the events which he claims gave rise to his fear of being persecuted leads me to conclude that he does not have a genuine fear of being persecuted if he returns to Sri Lanka now or in the foreseeable future." We see nothing wrong with this statement. Of course, the existence of delay does not end the inquiry. There may be a good reason for the delay, notwithstanding genuine and deep fears of persecution. In this case, the Tribunal did not suggest otherwise. We do not think the Tribunal misunderstood or misused the decision of Heerey J. 11 In our view none of the matters argued on behalf of the appellant has substance. The appeal must be dismissed. [Application was made for costs.] 12 The appeal will be dismissed with costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Wilcox, Einfeld and Tamberlin.

Associate: Dated: 18 November 1999

Counsel for the Appellant: Mr Jagdish Patel

Solicitor for the Appellant: Jamnadas & Associates

Counsel for the Respondent: Mr Justin Smith

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 18 November 1999