Pathberige v Minister for Immigration and Multicultural Affairs [2001] FCA 1902
The application had to be dismissed because the applicant raised no ground of review available under s 476 of the Migration Act 1958, and the Tribunal's rejection of his factual claims about risk on return to Sri Lanka was not a matter within the Court's jurisdiction to review.
Source-derived case information.
- Jurisdiction
- Australia
- Judgment Date
- 02 July 2001
- Procedural Posture
- Application for Review of a Refugee Review Tribunal Decision Affirming Refusal of a Protection Visa / Federal Court Reasons for Judgment and Orders
- Outcome
- Application for review dismissed with costs.
- Legal Topics
- ['protection Visa' 'refugee Review Tribunal' 'judicial Review' 'migration Act 1958 S 476' 'tribunal Findings of Fact']
Source-derived case record
Summary, issues, holding and outcome
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Procedural Posture
Application for Review of a Refugee Review Tribunal Decision Affirming Refusal of a Protection Visa / Federal Court Reasons for Judgment and Orders
Legal Issues
- 1 ['Whether the application disclosed any ground of review available under s 476 of the Migration Act 1958.' "Whether the Federal Court could overturn the Refugee Review Tribunal's factual opinion about what was likely to happen to the applicant if returned to Sri Lanka."]
Ratio Decidendi
The application had to be dismissed because the applicant raised no ground of review available under s 476 of the Migration Act 1958, and the Tribunal's rejection of his factual claims about risk on return to Sri Lanka was not a matter within the Court's jurisdiction to review.
Court Disposition
Application for review dismissed with costs.
Orders
- ['The application for review be dismissed.' 'The applicant pay the costs of the respondent of the proceeding.']
Full Case Text
Judgment text and source record
30 paragraphs
FEDERAL COURT OF AUSTRALIA
Pathberige v Minister for Immigration and Multicultural Affairs SAMAN PUSPAKUMARA WIMAL PATHBERIGE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W 45 of 2001 WILCOX J 2 JULY 2001 PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA W 45 of 2001
DISTRICT REGISTRY
BETWEEN: SAMAN PUSPAKUMARA WIMAL PATHBERIGE
APPLICANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE: WILCOX J
DATE OF ORDER: 2 JULY 2001
WHERE MADE: PERTH
THE COURT ORDERS THAT: 1. The application for review be dismissed. 2. The applicant pay the costs of the respondent of the proceeding. 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 W 45 of 2001
DISTRICT REGISTRY
BETWEEN: SAMAN PUSPAKUMARA WIMAL PATHBERIGE
APPLICANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE: WILCOX J
DATE: 2 JULY 2001
PLACE: PERTH
REASONS FOR JUDGMENT
WILCOX J: 1 This is an application by Saman Puspakumara Wimal Pathberige seeking review of a decision of the Refugee Review Tribunal, affirming a decision of a delegate of the Minister for Immigration and Multicultural Affairs to refuse a protection visa. 2 The application was lodged on 19 February by Mr Pathberige, acting in person. The application did not refer to any ground of review available under s 476 of the Migration Act 1958. 3 Mr Pathberige appeared in person today, by video-link with Port Hedland. He has been assisted by an interpreter present in court in Perth. 4 Mr Pathberige sent a letter to the Court dated 26 June 2001 which was written in Singhalese. At my request, the interpreter read the letter to the Court, translating it into English as she went. The letter repeats the case that Mr Pathberige put to the Tribunal. That case was that he was in danger of being killed by the LTTE if returned to his native Sri Lanka. 5 Although Mr Pathberige is of Singhalese extraction, rather than Tamil, he claims to be in danger from the LTTE. The reason for this is that, according to Mr Pathberige, some years ago he informed the Sri Lankan military of the location of some LTTE forces in the jungle near his home. Mr Pathberige says that it is not possible for him to relocate anywhere in Sri Lanka because the LTTE would be able to find out where he is and will come and kill him. 6 I understand the claims made by Mr Pathberige. They are the same claims he put to the Tribunal, but which the Tribunal did not accept. I explained to Mr Pathberige that the Tribunal is the judge of the facts, not the Court. He told me he understood this. The difficulty for Mr Pathberige, in this Court, is that the question as to what is likely to happen to him, if he is returned to Sri Lanka, is very much a matter of fact. The Court has no power to overturn the Tribunal's opinion about that question. 7 The Tribunal gave reasons for rejecting the claim made by Mr Pathberige that he was in danger if returned to Sri Lanka. Mr Pathberige made it clear that he does not accept the Tribunal's opinion, but that is not a matter which is within my jurisdiction to review. 8 I carefully read the Tribunal's reasons, to see whether it disclosed any ground of review under s 476 of the Migration Act. I was unable to find any such ground and no ground has been raised with the Court. Accordingly, I have no alternative other than to dismiss the application. 9 I order that the application for review be dismissed with costs.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.
Associate: Dated: 2 July 2001 Applicant appeared via video on his own behalf.
Counsel for the Respondent: M T Ritter
Solicitor for the Respondent: Australian Government Solicitor
Date of Hearing: 2 July 2001