WAIP v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1679 (17 December 2004)

Last Updated: 4 January 2005

FEDERAL COURT OF AUSTRALIA

WAIP v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1679

Migration Act 1958 (Cth) ss 36, 474

Migration Regulations 1994 Sch 2 item 785, Sch 2 item 866

Convention Relating to the Status of Refugees of 28 July 1951 Art 1A(2)
Protocol Relating to the Status of Refugees


Applicant S20/2002 (2003) 198 ALR 59 applied
Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 cited
Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 cited
Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274; (2001) 106 FCR 426 applied
Minister for Immigration & Multicultural Affairs v Epeabaka [1999] FCA 1; (1999) 84 FCR 411 applied
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 applied














WAIP v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
W189 of 2003

RD NICHOLSON J
17 DECEMBER 2004
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W189 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	WAIP APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	RD NICHOLSON J
DATE OF ORDER:	17 DECEMBER 2004
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.	The appeal be dismissed.
2.	The appellant pay the respondent’s costs of the appeal.

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	W189 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	WAIP APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	RD NICHOLSON J
DATE:	17 DECEMBER 2004
PLACE:	PERTH

REASONS FOR JUDGMENT

1 This is an appeal from the decision of a Federal Magistrate given on 23 May 2003. In that decision her Honour dismissed an application for review by the appellant. The application related to the decision of a Refugee Review Tribunal (‘the Tribunal’) given on 16 August 2002 which affirmed a decision of the delegate of the respondent to not grant the appellant a protection visa.

2 The appellant is a national of Sri Lanka. He arrived in Australia on 2 July 2001 without a visa and was placed in immigration detention. On 13 August 2001 he applied for a protection (class XA) visa. His application was refused by a delegate of the respondent on 20 June 2002. It was from that refusal that the application was brought to the Tribunal.

3 In its reasons the Tribunal said that the appellant claimed he was at risk of persecution for reasons of political opinion. He claimed he would be harmed by Sri Lankan authorities, who believe that he is a supporter of the Liberated Tigers of Tamil Ealam (‘LTTE’) and that the LTTE want to recruit him.

RELEVANT PROVISIONS

4 Under s 36(2) of the Migration Act 1958 (Cth) (‘the Act’) a non- citizen in Australia is eligible for a protection visa if that person is someone: ‘... to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol’. The Refugees Convention is the Convention Relating to the Status of Refugees 1951 and the Refugees Protocol is the Protocol Relating to the Status of Refugees 1967. (The expression ‘Convention’ will be used to mean the Convention as amended by the Protocol). The same criterion appears in Sch 2 of the Migration Regulations in which items 785 and 866 both include the same criterion.

5 Article 1A(2) of the Convention defines a ‘refugee’ to be any person who:

‘...owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it’

The reasons specified in Art 1A(2) are colloquially known as ‘Convention reasons’. The existence of such reasons, threatening the life or freedom of a refugee in a territory to which it is proposed he or she be expelled or returned, gives rise to a protection obligation prohibiting such expulsion or return as a consequence of Art 33 of the Convention.

TRIBUNAL’S REASONS

6 The Tribunal accepted the appellant was a Tamil man from northern Sri Lanka and that he had problems with both the LTTE and the Sri Lankan army at some time in the past.

7 The Tribunal reached an adverse conclusion on the appellant’s credibility stating:

‘... I do not believe he has been completely frank with the Department or the Tribunal. In the first place, I find the claim that he does not know where he was for all but a number of days between the time he left Sri Lanka and the time he arrived in Australia a few months later far fetched and implausible. I believe that he is concealing something about his whereabouts during this time. His refusal to tell the truth about this period raises serious questions about his general credibility as it suggests that he may be concealing information which would be detrimental to his protection visa application. Secondly, I found some of the evidence he gave about his situation in Sri Lanka in recent years confused and unconvincing. As discussed in more detail below, I find that he has exaggerated the seriousness and frequency of the problems he faced in recent years.’

8 In examining the appellant’s claim that he was at risk of persecution from the LTTE, the Tribunal accepted the appellant was forced to participate in LTTE rallies and assist the LTTE and was encouraged to join the LTTE. The Tribunal found the appellant never joined the LTTE and he did not suffer serious harm because of this. The Tribunal stated the evidence did not suggest that the appellant was seen as a traitor or an enemy because he refused to join the LTTE or for any other reason. The only time that he was detained by the LTTE was shortly after they occupied Jaffna when he was questioned about his association with another Tamil group. On that occasion he was released after a short time and he was never detained or seriously harmed by them again.

9 The Tribunal stated that it believed the appellant had exaggerated the extent of his contact with the LTTE. Even if his claims that he and other members of his family were forced to provide shelter to LTTE members on occasion were accepted at face value, he was never forced to go with them and was never harmed for refusing to join the movement.

10 In respect of the appellant’s claim of persecution by Sri Lankan authorities, the Tribunal accepted that the appellant had been detained by the Sri Lankan army in the past. The Tribunal said it was plausible that the appellant was briefly detained by the Indian Peace Keeping Force. The Tribunal said it was also plausible that the appellant was beaten or even tortured on one or more of these occasions, however the fact that the appellant was released after a brief time in detention indicated that he was not seriously suspected of involvement with the LTTE. In reaching this conclusion, the Tribunal noted the submission that his release was always secured by bribery and accepted that bribes were paid to secure his release. The Tribunal expressed the view that - given the severity of the authorities’ response to the LTTE and anyone seriously suspected of involvement with them throughout the 1990s - it was implausible that the appellant would have always been released after a relatively brief time in detention if he was seriously suspected of involvement with the LTTE.

11 The Tribunal’s reasons for decision stated:

‘While I accept that the applicant was detained and questioned on several occasions, I do not accept that he was constantly or regularly detained and ill-treated by members of army for a number of years prior to his departure from Sri Lanka as he appeared to be claiming at the hearing.

In the first place, the evidence which the applicant gave about this period was confused and unconvincing and he appeared to be unwilling or unable to respond directly to a number of questions which I put to him. While a certain amount of confusion would not have been surprising given the applicant’s obvious anxiety and the passage of time since these events occurred, I do not believe that all of the problems in his evidence can be explained in this way. I believe that he was exaggerating the extent of the problems which he faced with the army during this period.
. . .
After considering all of the relevant evidence, while I accept that the applicant was detained and ill-treated several times over a number of years and that he was frequently stopped and questioned at army checkpoints on the roads, as he told the delegate. I believe these detentions occurred because he was a young Tamil male from the north and therefore fitted the "profile" of someone who might be associated with the LTTE. However, I do not accept that he was detained for up to a week on numerous occasions over several years, nor that he was detained because he was seriously suspected of being an LTTE member or active supporter.

This conclusion is supported by the fact that the applicant was given permission by the army and local authorities to travel south on two occasions. On both occasions he made the trip under the protection of the Sri Lankan army without facing problems which suggested that he was not suspected of belonging to the LTTE. The applicant was also able to obtain a passport in his own name and leave Sri Lanka through the international airport without facing any problems. He claims that this was only achieved because he had the assistance of an agent, but I do not believe he would have escaped the attention of the authorities if he were believed to be a member of the LTTE.’

12 The Tribunal considered the ceasefire that had been in place in Sri Lanka since December 2001. The Tribunal accepted independent country information (which it cited) and stated that the information before the Tribunal did not suggest that the LTTE was engaged in a campaign to forcibly recruit men in the areas, which the LTTE still controlled, in the east or elsewhere in Sri Lanka. Nor was there anything in the evidence before the Tribunal to suggest that people of the appellant’s background were generally at risk of persecution from the LTTE because they were seen as traitors or enemies of the group. The Tribunal noted that the appellant’s parents and siblings remained in their home town and there was no suggestion that they had been harmed or even threatened by the LTTE.

13 In these circumstances, the Tribunal was not satisfied that there was a real chance that the appellant would face serious harm at the hands of the LTTE if he returned to Sri Lanka at that time. Furthermore, the Tribunal said that even if it accepted that the LTTE would seek to harm the appellant if he returned to his home town, he could seek the protection of the Sri Lankan authorities in his local area or elsewhere in Sri Lanka.

14 Referring again to the independent information on the ceasefire in Sri Lanka the Tribunal concluded:

‘In these circumstances, I believe there is no more than a remote chance that the applicant would be detained or harassed by the Sri Lankan [sic] as he has been in the past merely because he is a Tamil man from the north. The applicant is not a member or a supporter of the LTTE. He has never willingly assisted them in any way. As discussed above, I believe that the Sri Lankan authorities were satisfied that the applicant was not a member or an active supporter of the LTTE at the time of his departure from Sri Lanka and there is no reason to suppose that he would be suspected of belonging to or supporting the LTTE if he returned to Sri Lanka now. In any event, members of the LTTE are now permitted to move freely throughout most of Sri Lanka. There is nothing in the evidence before me which indicates that someone of the applicant’s background would face a real chance of persecution at the hands of the Sri Lankan authorities for reasons of political opinion or imputed political opinion or any other Convention reason.’

REASONING OF FEDERAL MAGISTRATE

15 The appellant claimed the decision of the Tribunal:

‘Involved an error of law, being an error involving an incorrect interpretation of the terms ‘well-founded fear’. The RRT failed to consider persecution in ‘near foreseeable future’.

... failed to apply the correct test and principles of relevant law in arriving at its decision and that it fell into error in taking into consideration irrelevant matters and in failing to take into account the matters that were relevant to reaching its decision, and therefore committed a jurisdictional error.

... wrongly understood most of my claim and the reasons for rejection of the material claims are unreasonable, irrational and illogical, lack proportionately (sic), no evidence, uncertainty and bad faith. The RRT also not complied with statutory rules.

... failed to follow procedural fairness according to the Muin and Lie cases of High Court of Australia’.

16 Senior Counsel for the appellant contended to her Honour that the Tribunal had:

(a) asked itself the wrong legal question and should have asked whether a temporary ceasefire and peace talks would be sufficient to allay a well-founded fear based on the past experience of the appellant; and
(b) failed to make an assessment of the appellant’s fear of persecution taking into account his mental and emotional state.

17 The Federal Magistrate concluded there was no reviewable error. Drawing on the relevant legal principles in Chan v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 and Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559, the Federal Magistrate stated at [25] – [28] (at pp 331 – 333 of the Appeal Book) (omitting case citations):

‘[25] The Tribunal made reasoned findings based upon the inferences which were reasonably open to it to draw....

[27] On a fair reading of the Tribunal’s reasons the RRT has considered all of the claims made by the applicant including past fears held by and mistreatment suffered by the applicant. Historical fear of the LTTE and the army were taken into account as was the applicant’s claimed present fear of persecution for a Convention reason. The Court’s role is not merits review. The findings made by the RRT and matters taken into account by it were within its jurisdiction. It cannot be said that the satisfaction of the RRT was based on findings or inferences of fact not supported by some probative material or logical grounds.

[28] ... The Tribunal asked itself the correct question in relation to whether the applicant had a genuine fear founded upon a real chance of persecution for a Convention stipulated reason. It correctly assessed whether the applicant had a well-founded fear of persecution at the date of determination of the application in light of past and present information about the situation in Sri Lanka. There is nothing in its reasons to suggest that it has not understood the relevant law and hence has failed to apply the law correctly to the facts. The Tribunal addressed the past experiences and fears of the applicant, considered the changes in Sri Lanka and effectively determined that any subjective fear that the applicant had was no longer well founded. On a fair reading of its reasons there is a proper consideration of the past, present and, on the evidence before it, the likely future.’

GROUNDS OF APPEAL

GROUND 1: FAILURE TO CONSIDER THE TOTALITY OF THE APPELLANT’S CLAIMS.

18 At the hearing the appellant contended that he had explained all his problems to the authorities but they had refused to accept them. Further he argued that the Sri Lankan army and LTTE were in fact preparing for war. These were not matters raised before her Honour. There is nothing in these contentions which can properly raise any error in the conclusion of her Honour, that on a fair reading of the Tribunal’s decision, the Tribunal had considered all of the appellant's claims and there was a proper consideration of the past, present and, on the evidence before it, the likely future. The ground of appeal is not made out.

GROUNDS 2 AND 3: FAILURE TO APPLY THE PROPER TESTS IN ASSESSING WHETHER THE APPELLANT’S FEAR WAS WELL-FOUNDED AND MAY BE DEALT WITH TOGETHER

19 The appellant contended at the hearing that he had a well-founded fear from 1983; Sri Lanka faced a recurrence of war; and as a person from the north he would continue to have a well-founded fear if returned.

20 The Federal Magistrate, guided by the relevant legal principles from Chan and Guo, was satisfied that the Tribunal had looked to the past, present and likely future unconfined to the ‘near foreseeable future’. In assessing the future in Sri Lanka for the appellant, the Tribunal considered country information about the ceasefire including that provided by the appellant’s adviser about the stability of the ceasefire and the peace process and whether the cessation of hostilities would be short lived. The appellant seeks to re-argue the merits. The ground of appeal is not made out.

GROUND 4: FAILURE TO CONSIDER THE GROUND OF PARTICULAR SOCIAL GROUP OF A YOUNG TAMIL FROM THE NORTH

21 Here again the appellant argued ‘both sides’ are preparing for war and that as a person from the north he would be affected by the war ‘in a severe manner’.

22 The Tribunal clearly considered the question of whether the appellant faced persecution as a Tamil man from the north: see [19] above. Again he seeks to
re-argue the merits. This ground of appeal cannot be made out.

GROUND 5(A): CREDIBILITY FINDINGS

23 The appellant has contended the Tribunal’s findings on credibility were irrational, illogical, unreasonable and lacked proportionality. He said the Tribunal did not understand he was from near Jaffna in a village through which the LTTE regularly passed. He said welding work he had done for the LTTE was undertaken because of fear they had inculcated in him.

24 As the Federal Magistrate stated, it is a function of the Tribunal to reach findings on credibility. It was her Honour’s conclusion that the Tribunal had made reasoned findings upon inferences that were open to the Tribunal to draw, on the evidence put before it. No basis has been put forward in the appellant’s oral submissions or otherwise upon which it can be contended that findings on credibility have led the Tribunal into reviewable error: see Applicant S20/2002 (2003) 198 ALR 59 at [5] and at [37]; Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274; (2001) 106 FCR 426 at [42]; Minister for Immigration & Multicultural Affairs v Epeabaka [1999] FCA 1; (1999) 84 FCR 411 at [20] - [261]. The Tribunal expressly addressed the location of the appellant and the contact his location brought him into with the LTTE.

GROUND 5(B): NO OPPORTUNITY GIVEN TO ADDRESS ADVERSE FINDINGS

25 The notice of appeal does not particularise any adverse matter which it is said the appellant should have been given the opportunity to address. That includes the issue of relocation which, on the basis of the Tribunal’s findings, it was not required to address.

26 The Tribunal did consider the appellant’s claims that he faced persecution on return to Sri Lanka. The application and the notice of appeal do not identify any error of jurisdiction or procedural fairness that would mean the decision is not made under the Act: see Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476. The application and notice of appeal also fail to identify any Hickman exception, or any requirement or limitation on the exercise of power by the Tribunal that it has not complied with or identified and which, notwithstanding the terms and effect of s 474, is essential to a valid decision. The oral submissions of the appellant did not identify any error of law but rather invited a revisitation of the merits. The Tribunal honestly dealt with the subject matter given to it under the Act, and acted in pursuance of its powers. The decision of the Tribunal was open to it in the exercise of its statutory powers.

CONCLUSION

27 It is apparent that the decision of the Federal Magistrate does not disclose any error of law as alleged in the notice of appeal. The result is that the appeal must be dismissed.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson.

Associate:

Dated: 17 December 2004

The Appellant represented himself
Counsel for the Respondent:	LB Price
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	8 December 2004
Date of Judgment:	17 December 2004