SWVB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 92 (8 February 2005)

Last Updated: 17 February 2005

FEDERAL COURT OF AUSTRALIA

SWVB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 92

SWVB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

SAD 189 of 2004

















SELWAY J
8 FEBRUARY 2005
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 189 of 2004

BETWEEN:	SWVB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SELWAY J
DATE OF ORDER:	8 FEBRUARY 2005
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. Application be dismissed.

2. The Applicant to pay the respondent’s costs.















Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 189 of 2004

BETWEEN:	SWVB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SELWAY J
DATE:	8 FEBRUARY 2005
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1 The Applicant has issued proceedings under section 39B of the Judiciary Act 1903 (Cth) seeking the issue of writs of certiorari prohibition and mandamus in relation to the decision of the Refugee Review Tribunal (‘the Tribunal’) dated 16 August 2004. For the reasons given below, that application must be dismissed.

2 The Applicant is a Sri Lankan citizen. He first arrived in Australia on 8 January 1996. He unsuccessfully applied for a protection visa on 30 June 1997 and was deported to Sri Lanka on 6 November 2003. The Applicant returned to Australia on 21 February 2004 on a false passport and was detained on 1 April 2004. On 3 June 2004 he lodged a second application for a protection visa.

3 In order for the Applicant to obtain a protection visa the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) had to be satisfied that Australia owed protection obligations to the Applicant: see s 36(2) of the Migration Act 1958 (Cth) (‘the Act’). In general terms the Minister had to be satisfied that the Applicant:

‘... 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, is unable or, owing to such fear, is unwilling to return to it.’

4 On 28 June 2004 a delegate of the Minister refused to grant the Applicant a protection visa and on 1 July 2004 the Applicant applied to the Tribunal for a review of that decision. On 16 August 2004 the Tribunal affirmed the decision not to grant a protection visa. It is from that decision that the Applicant makes an application to this Court.

5 In his first application for a protection visa lodged in 1997 the Applicant said he had joined the Sri Lankan army in May 1995 but deserted soon after. He said he was fearful and did not want to fight the Liberation Tigers of Tamil Eelam (‘the LTTE’) without adequate training. He claimed that he had argued with senior officers over the treatment of Tamils. He claimed that when he heard that the army was looking for him at his parents’ house he made arrangements to leave Sri Lanka and come to Australia. His application for a protection visa was rejected on that occasion and he was deported.

6 In respect of his present application, the Applicant claimed that he joined the army in 1993 but later corrected that date to 1995. He claimed to have witnessed an exchange of arms between officers of the Sri Lankan army and members of the LTTE, and became aware of corruption in the army. He claimed to have been tainted by this corruption even though he was not involved. He claimed that his life was in danger. He claimed that this is why he deserted the army and left Sri Lanka.

7 He claimed that when he returned to Sri Lanka in 2003 after he was deported, his brother bribed an airport official to get him through customs without being arrested. He said he later discovered that his name was still on the wanted list and that his life was still in danger, and for that reason he returned to Australia on a false passport. He claimed that the army was still looking for him and were harassing members of his family.

8 The Tribunal hearing his present application rejected the Applicant’s credibility:

‘In this case the Tribunal accepts that the Applicant is a citizen of Sri Lanka as claimed. However, having carefully considered the Applicant’s oral and written evidence and the claims made in the first protection visa application and before the first Tribunal, the Tribunal is satisfied that the Applicant is not a witness of credit, at least in relation to his key claims and the Tribunal is satisfied that his key claims have been fabricated. This is because the Applicant’s evidence in relation to the current application is inconsistent in important respects with the evidence he gave in his previous application, and because his oral evidence before this Tribunal is at odds in some important respects with the written evidence he provided in this protection visa application. In addition the Tribunal finds the Applicant’s key claim implausible. More generally the Tribunal has serious concerns about the Applicant’s credibility for example in the first protection visa application he wrote that he has no military service obligations but then the whole thrust of his claim is that he deserted the Army, and he claimed to have had difficulty obtaining a passport, even though he got it in March 1993, well before he ever claimed to have had any problem from any source for any reason. As well as the whole question of whether he was in the Army and if so when, information about his employment history pre and post army in the two protection visa applications is inconsistent ...

The Tribunal is prepared to accept for the present purpose that the Applicant deserted the Army after a few months. Although the adviser suggested in submissions that the authorities were looking for the Applicant, at least in part for this reason, the Applicant did not claim in the current application, to fear persecution on return to Sri Lanka now because he deserted the Army. In any case, as the Tribunal explained in the hearing, under section 416 this Tribunal need only consider new information and "may have regard to and take to be correct, any decision" made by the Tribunal (as previously constituted) about or because of that information. Furthermore, since that decision, independent information is that over the last year the Government has taken steps to de-list over 50,000 mainly Army deserters and give them a clearance certificate subject to repayment of moneys or items outstanding. Therefore the Tribunal is not satisfied the Applicant has a well-founded persecution if he returns to Sri Lanka, because he deserted the Army.

Most importantly, the Tribunal rejects as a fabrication, the Applicant’s current key claims, namely that the fears prosecution by a court or a court-martial, or torture or other serious mistreatment in custody, because he has been accused of selling arms, and that he fears being killed by the senior officers involved in the arms incident and/or the Captain (now Brigadier) who was the camp CO at the time, and/or by his supporters or the Army or CID or Police acting at his/their behest, to ensure his silence about the arms incident that occurred during his brief period of army service. This is because the arms incident was not mentioned in the first application, or to the first Tribunal, and the Tribunal finds the Applicant’s various explanations for this unconvincing ...

There are other reasons for rejecting the Applicant’s key claims. Although his statement in support of the current application sets out the arms incident, the response of the Army and his desertion en route to Gulpalli prison camp, in the current protection visa application form the Applicant wrote that he has military service obligations in that he deserted because he didn’t follow orders of his superiors, rather than because he was wrongly accused of arms selling, and he told the Tribunal that he always followed orders.

Despite the Applicant’s claim that he has been accused of selling arms and he’s wanted for this and charges are still standing, he denied, on the current protection visa application, having been charged with anything currently awaiting legal action, and he claimed in the post hearing submission that there were no charges or warrant against him.

In any case the Tribunal notes that the Applicant’s account of the arms incident does not suggest that he has information about the incident such that as a witness he is a threat to those actually involved; for example, he knew no names, except for the corporal, no date other than August 1995, no place, no names of the Tamils and no information about the materiel (sic). Also as he claimed to have been a shown a document authorising exchange of arms for captured soldiers, if it occurred, it may well have been a properly authorised, albeit sensitive operation.

As the Tribunal has found that the Applicant’s key claims have been fabricated, the Tribunal gives no weight to the letters from his siblings. The Tribunal also notes that the letters are vague about who came asking about the Applicant when, and his brother refers to the underworld being after him yet the thrust of the Applicant’s own evidence is that he fears the senior officers involved in the arms incident.

In sum, the Tribunal does not accept that the Applicant’s key claims are credible and accordingly, the Tribunal is not satisfied the Applicant has a well-founded fear of being persecuted for reasons of actual or imputed political opinion, or for any other Convention reason, if he returns to Sri Lanka now or in the reasonably foreseeable future.’

9 In order to succeed in his application to this Court the Applicant must show that the process, reasons or decision of the Tribunal were affected by jurisdictional error. Both in his application and in his oral argument the Applicant complained that the Tribunal decision was in error on the merits. He said that he was truthful and the Tribunal was in error in disbelieving him. Of course, even if the Applicant was correct in this, that would not give rise to jurisdictional error. In any event, there is nothing in the material before me which would suggest that the Tribunal was in error in its analysis.

10 The only possible ground of jurisdictional error alleged in the application was that the Tribunal failed to afford the Applicant procedural fairness by failing to inform him that it might not accept that the various letters from family members and others that he had put before the Tribunal were genuine. Without deciding whether or not this could constitute a jurisdictional error, it is clear that the Applicant cannot succeed in relation to it. There is no evidence before the court to show that the Tribunal did not put this matter to him. What evidence there is is to the contrary. The Applicant, through his advisers, was given the opportunity to comment, after the Tribunal hearing, on various matters of concern to the Tribunal. In their letter of 10 August 2004 the advisers commented as follows:

‘We refer to the Tribunal’s comments at the hearing about the veracity of the recent statements from the Applicant’s family. As stated at the Hearing, after the Applicant informed RACS that his family were being harassed by people who they suspected to be from the military, RACS suggested to the Applicant that his family members might like to make statutory declarations about what had happened. We understand that, after his conversation with RACS, the Applicant made that request to his family members and asked them to send their statements to RACS (on RACS request).

We hope this explains why the statements were addressed to RACS and why they may have been worded as though they were in response and not of an informing nature.

We submit that those statements are genuine and do support the Applicant’s claims that he is wanted for illegal arms sales and should be considered.’

11 That letter is specifically referred to in the Tribunal’s reasons.

12 For all these reasons no jurisdictional error is shown. Consequently the application must be dismissed.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.

Associate:

Dated: 15 February 2005

Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	K Tredrea
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	8 February 2005
Date of Judgment:	8 February 2005