VMAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 21 (16 February 2005)

Last Updated: 24 February 2005

FEDERAL COURT OF AUSTRALIA

VMAJ v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCAFC 21

MIGRATION – judicial review – claims of detention and torture – claims rejected – psychological evidence of post-traumatic stress syndrome – failure to refer specifically to psychological evidence in rejection of claims of detention and torture – psychological evidence otherwise referred to in reasons – whether jurisdictional error – appeal dismissed








Migration Act 1958 (Cth)
Judiciary Act 1903 (Cth) s 39B












VMAJ AND VMAK v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
VID 684 OF 2004





WILCOX, FRENCH AND FINKELSTEIN JJ
16 FEBRUARY 2005
(Date of Publication of Reasons 24 February 2005)
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID684 OF 2004

On Appeal from a Decision of the Chief Federal Magistrate

BETWEEN:	VMAJ AND VMAK APPELLANTS
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	WILCOX, FRENCH AND FINKELSTEIN JJ
DATE OF ORDER:	16 FEBRUARY 2005
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellants are to 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
VICTORIA DISTRICT REGISTRY	VID684 OF 2004

On Appeal from a Decision of the Chief Federal Magistrate

BETWEEN:	VMAJ AND VMAK APPELLANTS
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	WILCOX, FRENCH AND FINKELSTEIN JJ
DATE: Date of Publication of Reasons:	16 FEBRUARY 2005 24 FEBRUARY 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT:
Introduction

1 This appeal is brought by a mother and son who arrived in Australia on 19 February 2002 on Indian passports. They entered Australia on visitors’ visas. VMAJ, the mother, was born on 9 May 1960. Her son, VMAK, was born on 9 June 1983. On 30 April 2002, VMAJ made an application for a protection visa and included her son in the application. Both claimed to be Sri Lankan nationals of Tamil ethnic origin. The application was supported by copies of the passports on which they entered Australia and certified copies of their certificates of birth. They asserted that the passports which they had used to enter Australia and which were on their face Indian passports were in fact forged.

2 On 3 July 2002, a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused the application for protection visas. Both applicants sought review of that decision on 12 July 2002. On 29 November 2002, the Refugee Review Tribunal (the Tribunal) affirmed the decision of the Minister’s delegate.

3 On 16 January 2003, VMAJ and VMAK lodged an application for judicial review of the Tribunal’s decision. The application was purportedly lodged under Pt 8 of the Migration Act 1958 (Cth). In truth it could only proceed as an application under s 39B of the Judiciary Act 1903 (Cth). The provisions of Pt 8 which had conferred jurisdiction on the Court to entertain judicial review applications were repealed in 2001.

4 The appellant’s application was remitted to, and then heard and determined in, the Federal Magistrates Court of Australia. On 12 May 2004, the Chief Federal Magistrate dismissed the application. On 31 May 2004, a notice of appeal was filed against the decision of the Chief Federal Magistrate. As the original application for a protection visa related entirely to protection claims made by the mother and as the appeal relates entirely to their disposition, she will be referred to in these reasons as ‘the appellant’.

5 The only ground of appeal that is now pursued asserts that the Tribunal failed to consider or deal with psychological evidence which was before it relevant to the appellant and that the learned Chief Federal Magistrate erred in finding that the Tribunal had considered that evidence.

6 It is necessary in addressing this ground to have regard to the Tribunal’s findings and the way in which the psychological evidence bore upon them.

The Appellant’s Claims

7 The appellant’s claims made in support of the original application for a protection visa were conveniently summarised by the learned Chief Federal Magistrate. Important elements of those claims were as follows:

1. The appellant was born in 1960 on the Jaffna Peninsula.

2. In 1978 she married a political activist involved with the Tamil United Liberation Front (TULF) and who attended meetings and protests.
3. After her marriage the appellant started to engage in political activities.
4. In 1981 her husband was elected as a member of the Village Council as a TULF candidate. The appellant became a member of the Women’s Wing of the party and increased her political activities.
5. In 1983 militant Tamil groups began targeting TULF moderates. Some members of parliament were killed. The appellant and her husband were involved in organising their funerals and commemorations and addressed such gatherings.
6. The appellant openly denounced a militant Tamil organisation, the LTTE. It commandeered her tractor and started creating problems for her and her family. Harassment continued until the arrival of the Indian Peace Keeping Force (IPKF).
7. Tamil groups started working with the IPKF and began to target the LTTE. They approached the appellant and her husband and pressured them to identify LTTE operatives.
8. In June 1989 Tamils were arrested in a search operation. The appellant and her husband were pressured to publicly identify LTTE members.
9. In October 1989 the appellant and her husband moved to Jaffna. However, in January 1990 the LTTE took over that area and started to arrest and kill those who had cooperated with the IPKF.
10. The appellant and her husband were taken to a camp for questioning in April 1990. Her husband was severely tortured and she was treated brutally and inhumanly by female members of the LTTE. They were detained for six months.
11. On release the appellant and her husband were ordered not to leave their residence without permission. However they did so because their village was bombed by the Sri Lankan Air Force in November 1993. They moved to her cousin’s uncle’s house in Anaikoddai.
12. In October 1995 the LTTE ordered the whole population to go to Vanni. The appellant reached Kilinochchi in December 1995.
13. In July 1996 there was a major military operation against the town. The appellant fled with her family to Vannerikulam. They were assisted by her cousin to construct a semi-permanent shelter there.
14. That house was damaged and the appellant’s son was seriously injured and hospitalised at Vallavi hospital.
15. The appellant decided to flee with her family to India. However on their voyage the Sri Lankan Navy fired upon them and the appellant’s husband and other son were injured. They returned to Sri Lanka.
16. In September 1997 the appellant and her husband wanted to start a transport business. The LTTE initially withheld permission but eventually gave it on condition that they would gather intelligence for the LTTE. They started the business in November 1997.
17. They were also asked by the Sri Lankan Army to provide information about the LTTE movements and sentry points.
18. In June 2001 the LTTE conscripted the appellant’s son. She complained and was detained by the LTTE for two days. She was told that if she created any further problems and did not cooperate her other son would also be recruited.
19. The appellant decided to flee to India. Her cousin found a travel agent who organised photographs to be taken for their departure.
20. The appellant gave the LTTE information about Security Forces in 2001. She fell under suspicion by the army for giving information and was identified as a spy.
21. On 30 November 2001 the LTTE sent a note asking the appellant to come to its camp for an inquiry. She realised she was in danger as business people had been killed on suspicion of giving information to the Security Forces. Also the Security Forces were searching for her.
22. The appellant and her son went to a relative’s home to discuss the journey to India and her husband stayed at home. While she was away LTTE cadre took her husband.
23. The appellant and her son made plans to leave the country immediately. They took a boat to India in 2002.
24. In India they contacted an agent who said he could arrange for them to come to Australia. They were shown Indian passports which were forged and contained photographs of them with false names.
25. The appellant and her son travelled to Australia on tourist visas, issued in Mumbai on 18 December 2001. They travelled with a third party who represented himself as the appellant’s husband.

8 Some of the matters put to the delegate and later to the Tribunal conflicted with the written submission in support of the application for a protection visa. It is not necessary to canvass the details of those inconsistencies here.

Psychological Evidence before the Tribunal

9 Amongst the materials submitted to the Tribunal was a report on the appellant written by a clinical psychologist, Mr Guy Coffey and dated 16 October 2002. Mr Coffey had seen the appellant on three occasions during August and October 2002. She had given him an account of her personal history which was in accordance with the written statement lodged in support of the application for a protection visa. In the report, which was written on the letterhead of ‘The Victorian Foundation for Survivors of Torture Inc’ and addressed to the appellant’s migration agent, Mr Coffey described the appellant’s demeanour during her interviews with him. He said that she expressed intense distress when discussing her husband and son and was unable to compose herself for several minutes. She was otherwise composed if despondent. Together with depressive symptoms, she described anxiety symptoms which appeared to derive from the family separation and earlier events including an episode when she claimed to have been held captive by the LTTE in 1990. She referred to this as among the ‘worst’ experiences she had been directly subject to. She gave Mr Coffey a brief account of forced labour and specific forms of torture which she endured, including interrogations, threats and the use of pythons to frighten and crush her. Mr Coffey said:

‘Her account was accompanied by fearfulness that bordered on terror. It does not appear that these experiences have in any way been worked through: it’s possible that their intensity has been reanimated by her current difficulties – a phenomenon we often witness in survivors of traumatic events when their circumstances become insecure.’

10 Mr Coffey reported the appellant saying that the many past events that troubled her intruded on her thinking like a movie in her head. The strength of her emotional reaction to recollections of trauma and intrusive memories and nightmares that she reported indicated, according to Mr Coffey, that she suffered from a post-traumatic reaction as well as depressed mood. He went on to say:

‘ You have asked me to briefly comment on [the appellant’s] capacity to provide a coherent account of her experiences in relation to her protection claims. She is competent in the general sense that her memory is not generally impaired and she responds coherently to questions about her experiences. Two caveats are in order however: firstly when she becomes very emotionally aroused she appears confused and losses (sic) her train of thought, secondly, perhaps in order to protect herself from the distress associated with difficult experiences, she sometimes appears at first to provide elliptical or tangentially relevant responses to questions directed at such experiences: this can give the initial appearance of evasiveness about or a lack of detailed knowledge regarding events which she is subsequently able to more comprehensively describe.

I appreciate that you are interested in whether my assessment of [the appellant’s] mental state tends to corroborate or run counter to her account of the events relevant to her protection claims. Nothing of course definitive can be said about this on the basis of my assessment and I can simply state the following. [The appellant] is depressed and also suffers from anxiety symptoms associated with a post-traumatic condition. Depression can emerge for a wide variety of reasons, but she attributes its genesis to a series of difficult experiences the most important of which is her separation from her husband and oldest son. Her distress regarding this matter was manifest during the interviews and it does not appear the separation has occurred voluntarily. Her post-traumatic symptoms indicate a series of traumatic experiences. The events that she describes, if true, would explain the presence of these symptoms.

[The appellant] will require ongoing treatment which should involve psycho-therapy and the provision of anti-depressant medication.’

11 The Tribunal set out in its reasons for decision the substance of the claims of torture and detention and the symptoms observed by Mr Coffey as set out in his report. It also referred to his observations about her memory and the proclivity to provide elliptical or tangential responses to questions directed at her experiences. It repeated in its summary Mr Coffey’s observation that the events described by the appellant, if true, would explain her symptoms.

The Tribunal’s Findings

12 In the conclusionary section of its reasons for decision headed ‘Findings and Reasons’, the Tribunal referred to the psychological report concerning the appellant particularly as it bore on her ability to give evidence. It found difficulty in getting a consistent and clear picture of her personal history, her economic life, her family situation and, more importantly, her relationship with the authorities and the LTTE and her departure from Sri Lanka. The Tribunal observed that even on subjects that only indirectly related to her separation from her husband and older son and claimed experiences of trauma, her answers tended to skirt or ‘zig zag’ around rather than directly attack the question asked. It was not persuaded that this was due to the appellant’s personality, style of communication or psychological state or because of cultural factors. The readiest explanation was that the appellant had trouble, because the claimed experiences were not true, filling in the details of a claim that was inherently strained but that she saw as necessary to her application, namely that her life or liberty was threatened by both the LTTE and Sri Lankan authorities.

13 The Tribunal found the appellant’s claim to Sri Lankan nationality to be ‘very much in question’. The conclusion was open that she was an Indian national named in accordance with her passport. It was not satisfied that the appellant was a Sri Lankan national but formed the view that there was sufficient doubt on that question that it should ask itself what would be the consequence if it were wrong. That is, it should proceed to analyse her claims on the assumption that she might be a Sri Lankan national.

14 On the assumption that the appellant was a Sri Lankan national, the Tribunal found that she was a supporter of non-Tiger Tamil groups but that she had exaggerated her own and her husband’s political profiles in the 1980s. Had she had an overt profile as somebody who opposed the LTTE at that time she would not have moved even further into LTTE heartland in late 1989 by returning to Jaffna.

15 The Tribunal accepted that the appellant’s property was commandeered by the LTTE but did not accept that it was done for Convention reasons. It did not accept that the appellant or her husband were detained by the LTTE in 1990. She had been unable to give any clear explanation of why this had occurred at the time. She did not give clear evidence as to what information, if any, she would have been able to give to the IPKF and did not accept that she did give any such information.

16 The Tribunal accepted that the appellant had been displaced and that she had tried to travel to India in 1995/96 and that her sons were injured. These experiences, although distressing and frightening, did not evidence a risk of persecution for Convention reasons.

17 In respect of the appellant’s claim that she had been detained by the LTTE and tortured in 1990, the Tribunal said:

‘The Tribunal does not accept that the applicant (or her husband) was detained by the LTTE in 1990. She could not, despite the Tribunal’s prompting, give a clear explanation of why this occurred at the time that it did. The Tribunal has not accepted the applicant was a known political opponent of the LTTE. And it was simply not sufficient to allege that the LTTE, in its own good time, systematically rounded up anyone who had moved up from Kilinochchi and detaining (sic) them on the suspicion that they might have provided information to the IPKF. The applicant did not give clear evidence as to what information, if any, she would have been able to give the IPKF, and the Tribunal does not accept that she did give any such information. Without wishing to attribute too much rationality to the LTTE, there was therefore no basis at all for the detention.’

18 The Tribunal did not accept that from 1997 onwards the appellant was travelling from Vanni to Vavuniya in some sort of commercial role. She had been unable to give, to the delegate, any detailed account of the arduous process of making that journey. On the other hand at the Tribunal hearing she had given a very detailed answer which appeared to be accurate. The lack of detail in her earlier account led the Tribunal to conclude that she had informed herself about the area in the intervening period.

19 The Tribunal rejected as fanciful the suggestion that either the military or the LTTE blamed her for fatalities or casualties arising from any military operation. It also found ‘surprising’ the suggestion that the LTTE had directed a suspected informant to come in for questioning, given the brutality for which the LTTE was known.

20 The Tribunal did not accept that the appellant’s other son had been forcibly recruited by the LTTE or that she had attracted the enmity of the LTTE for opposing his recruitment. As the son in question was old enough to travel to Australia by himself, it was inconceivable that she would simply leave Sri Lanka without somehow reporting what had happened to the local Red Cross or some human rights organisation. She had not taken any action in Australia to have her son traced. The Tribunal noted that if her son had joined the LTTE against her wishes that would not put her at risk of persecution by either the LTTE or the Sri Lankan government.

21 The Tribunal also observed that the ceasefire between the LTTE and the government was holding and that peace negotiations were well under way. The risk of unwilling family members of LTTE recruits being targeted was no more than speculative.

22 The Tribunal did not accept that the appellant’s husband was missing and referred to her inconsistent accounts of the context in which his disappearance had occurred.

23 The Tribunal accepted that the appellant was a Tamil but did not accept that Tamils as such were persecuted in Sri Lanka. Only Tamils with a certain profile attracted suspicion in Colombo and were at possible risk of being seriously harmed. The appellant did not fit that profile. She was a middle age woman travelling with her son. She had a national identity number.

24 The Tribunal was also satisfied that it would be reasonable for the appellant to relocate to the south of Sri Lanka given that both she and her husband could speak English. The profile of her son did not constitute a real risk.

Grounds of Appeal

25 The only ground of appeal which is now pursued was expressed as follows:

‘Her Honour erred in finding that the Tribunal considered all of the integers of the appellant’s claim and in particular erred in finding:-

...

(b) It had considered and/or dealt with the psychological evidence before it, relevant to the appellant.’

Whether the Tribunal Committed a Jurisdictional Error

26 The argument in support of the sole ground of appeal was directed to the failure of the Tribunal to refer, in the conclusionary section of its reasons, to the psychologist’s observations and conclusions about the appellant in relation to her recounting and recollecting the alleged detention and torture which she had undergone in 1990. The Tribunal, as appears from the passage cited earlier in these reasons, rejected the claim of detention and, by implication, the claim of associated torture. It did so because it did not accept that the appellant was a known political opponent of the LTTE. Nor was it persuaded of the sufficiency of the allegation that the LTTE would simply systematically round up anyone who had moved from Kilinochchi and detain them on suspicion of providing information to the IPKF. It also observed that the appellant did not give clear evidence about what information, if any, she would have been able to give the IPKF and the Tribunal did not accept that she gave any such information. This is a finding of fact which was on the face of it based on the Tribunal’s assessment of the appellant’s evidence and its own rejection of the proposition that the appellant was a known political opponent of the LTTE.

27 The argument advanced on behalf of the appellant involved a suggestion that the Tribunal should, in the conclusionary part of its reasons, have expressly referred to and dealt with the psychologist’s observations about the appellant’s manifestation of ‘fearfulness that bordered on terror’ in giving her account of having been detained and tortured. No doubt related to that is the psychologist’s proposition that if the events that she described were true that would explain the presence of her symptoms.

28 While it may have been desirable, in the interests of fully exposing the reasoning process, for the Tribunal to have made express reference to that aspect of the evidence in making its findings about detention and torture, its failure to do so does not amount to jurisdictional error vitiating the decision which it made. It is at worst an omission to deal with an aspect of the evidence before it which could logically have had a bearing on the question whether the appellant had been detained and tortured. The Tribunal had sufficient basis in the evidence to support its conclusions about the unlikelihood of that occurrence. The psychologist’s observations were based upon the appellant’s demeanour at the time of her interviews with him. While they may have been informed by professional expertise, it is to be remembered that the Tribunal also had the opportunity of observing the appellant when she was speaking of these matters.

29 In order to succeed the appellant must show that there was a jurisdictional error on the part of the Tribunal. The appellant’s case of jurisdictional error relies solely upon the Tribunal’s omission to refer to the psychologist’s evidence in the conclusionary section of its reasons, this being characterised as a failure to take into account a mandatory relevant consideration. However, it is clear from the Tribunal’s reasons that it was very conscious of the terms of this evidence. Omission to discuss one aspect of it in making conclusions of fact is not enough.

30 While it may be that on an appeal de novo, against the Tribunal’s findings of fact, the omission of the Tribunal to make reference to the psychological evidence might constitute appealable error, it does not rise to the level of jurisdictional error for the purposes of the judicial review that is now available in relation to decisions taken under the Migration Act.

31 No other argument of substance was advanced in support of the appeal. In the circumstances, the appeal must be dismissed.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 24 February 2005

Counsel for the Appellants:	Mr JA Gibson with Mr P Pentony
Counsel for the Respondent:	Mr R Knowles
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	16 February 2005
Date of Judgment: Date of Publication of Reasons:	16 February 2005 24 February 2005