Gamage v Minister for Immigration & Multicultural Affairs

[2001] FCA 1341

FEDERAL COURT OF AUSTRALIA

Gamage v Minister for Immigration & Multicultural Affairs [2001] FCA 1341

V252 of 2001

IROSHA DILRUKSHI GAMAGE  and  SHENNON ANTHONY ELSWORTH LAFABER  -v-  THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RYAN J
MELBOURNE
13 SEPTEMBER 2001

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V252 of 2001

BETWEEN:

IROSHA DILRUKSHI GAMAGE
First Applicant

SHENNON ANTHONY ELSWORTH LAFABER
Second Applicant

AND:

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent

JUDGE:

RYAN J

DATE OF ORDER:

13 SEPTEMBER 2001

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicants pay the respondent’s costs of the application, such costs to be taxed in default of agreement.

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	V252 of 2001

BETWEEN:

IROSHA DILRUKSHI GAMAGE
First Applicant

SHENNON ANTHONY ELSWORTH LAFABER
Second Applicant

AND:

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent

JUDGE:	RYAN J
DATE:	13 SEPTEMBER 2001
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”), affirming the refusal of applications by each of the applicants, who are wife and husband, for protection visas.  The applicants are citizens of Sri Lanka.

2. The first applicant, Ms Gamage, is of Sinhalese ethnicity and a Buddhist by religion.  She studied in Australia between 1990 an 1993.  Subsequently she was employed as a travel executive by Thomas Cook Overseas and, in the course of that work, travelled outside Sri Lanka to Australia and parts of Europe and Asia.  In 1994 she married her first husband, who was a flight lieutenant in the Sri Lankan Air Force.  He was killed in April 1995 when his plane was attacked at Jaffna by forces of the Liberation Tigers of Tamil Eelam (“the LTTE”).  After that event, Ms Gamage received threatening telephone calls.  The callers asked about documents which had been in the possession of her late husband.  As well, she claimed, her house was ransacked on two occasions.

3. The first applicant claimed that this attention had been directed to her because she was believed to be in possession of operational plans of the Sri Lanka Air Force.  She also said that whatever information she did have is in the safekeeping of relatives.  She claimed that the authorities in Sri Lanka had been unable to take action in respect of her harassment because those responsible were unidentified.  She also claimed that she would be persecuted by the LTTE if she were to return to Sri Lanka, where the authorities are incapable of protecting her “because she is just a normal person”.

4. Ms Gamage married the second applicant, Mr Lafaber, in August 1999.  He is a Burgher by descent and a Roman Catholic by religion.  He was employed by Singapore Airlines as a sales officer from 1992 until he left for Australia in September 1999.  He claimed to be at risk of persecution in Sri Lanka by reason of a political opinion imputed to him as a result of his brother’s active membership of the United National Party (“the UNP”).  He further claimed that he had been harassed and threatened by the People’s Alliance Party (“the PA”), because of his brother’s activities.  He asserted that he would be harmed by the PA if he were to return to Sri Lanka.  His brother, who is presently in Australia, having arrived in 1998, (that is in advance of the present applicants), has made a separate application for a protection visa.

5. The second applicant claimed at the hearing before the Tribunal that he had received threatening telephone calls at his workplace and had repeatedly been asked for the whereabouts of his brother.  He was also urged, he said, to speak to his brother about the latter’s political activity.

6. In its “Findings and Reasons” the Tribunal accepted that the applicants were citizens of Sri Lanka and had no claims or rights to residence in any other country.  After referring to authorities governing the evaluation of evidence in cases of this kind, the Tribunal observed at p 6 of its decision:

   “The Tribunal accepts that the applicant wife’s first husband died in 1995 in the circumstances she described.  However, the events leading up to her departure from Sri Lanka in 1999 and her association with the LTTE is not plausible.  The Tribunal considers the applicant wife’s claim that the LTTE would pursue her because of information in files belonging to her late husband is far-fetched.

As the Delegate pointed out, if, in the unlikely event that she was being threatened by the LTTE because her late husband was in possession of official documentation in relation to the Air Force’s operations, she could have handed the information over to the relevant authorities.  It is simply not plausible that she would not hand over this information if it resulted in her receiving threats from the LTTE.  In addition, the fact that the relatives who have been entrusted with the safekeeping of this information have not been harmed does not assist the applicant’s claim.

The Tribunal considers it incongruous that the applicant wife continued to live and work in Sri Lanka from 1995 until September 1999 without coming to any harm.  On her own story she worked in the same employment from 1994 to 1999 when she departed for overseas.  If the LTTE had wanted to harm her then they had ample opportunity.  The Tribunal has also noted that if she was being threatened by the LTTE following the death of her first husband in 1995 that she did not apply for protection at an earlier time.  Her travel documents show that she travelled to Australia in 1996, Switzerland in 1997 and London in 1998. 

Finally the Tribunal does not consider it plausible that she would not change her telephone number and/or move to another area in Sri Lanka if she was receiving telephone threats and having her house ransacked.

Given all these with her account, the Tribunal has concluded that the applicant wife’s claim, that she was threatened by the LTTE who were trying to obtain files containing Sri Lankan Air Force security information, has been contrived.  Accordingly, the Tribunal is not satisfied that the harassment occurred as claimed.  The Tribunal is not satisfied that the applicant wife experienced persecution from the LTTE because of information in her possession.”

1. Having rejected the first applicant’s claims of past persecution and having found that she had exaggerated her claim for refugee status, the Tribunal found that there was not a real chance that she would face persecution for a Convention reason if she were to return to Sri Lanka. 

2. In respect of the second applicant’s claim, the Tribunal said, at p 7 of its reasons;

   “The Tribunal has considered the applicant husband’s evidence that he received threatening telephone calls at his workplace on account of his brother’s political activity.  The Tribunal has also considered the evidence provided by the applicant’s brother about his political profile in a separate application.

   The Tribunal does not accept the applicant husband’s claim that he was targeted by PA supporters.  His brother was an ordinary supporter who worked at the local level.  His brother never held any position in the party or had an organisational role, he was not a member as claimed by the applicant husband.  His brother has not been involved in any political activity since 1998.  Because his brother had a low political profile the Tribunal concludes that the applicant brother would not be of adverse interest to PA supporters or any other group.”

1. The Tribunal in its reasons then referred to “country information” pertaining to Sri Lanka, including advice from the Australian Department of Foreign Affairs and Trade, to this effect;

   “.....ordinary supporters and officials of political parties do not harass supporters and officials of other parties.  Such actions are the work of ‘thugs associated with politicians and both major parties are equally involved’.  DFAT cable CX34305 of 11 March 1999 in response to questions about whether the police would act unlawfully towards UNP supporters for the PA government reported that this does not occur.  This cable reports that senior UNP supporters continue to campaign openly and vigorously for election in Sri Lanka.  The UNP is still the largest and best organised political party in Sri Lanka and some of the most prominent members of the Sri Lankan community are active supporters.  This evidence does not suggest that there is a widespread or generalised campaign of violence against UNP supporters.”

1. In respect of Mr Lafaber’s personal circumstances, the Tribunal reached these conclusions;

   “Despite the applicant husband’s claim that he received threatening telephone calls at his workplace he continued to work in his same employment with Singapore Airlines in Colombo up until the time of his departure for Australia in 1998 without any of the alleged threats materialising.  Moreover, given that he resided in the same street in the same suburb in Colombo from 1989 to 1999 without any apparent problems is further evidence that he was not of interest to the PA before his departure.

   The Tribunal considers it incongruous that the applicant husband did not apply for protection at an earlier time if he was being harassed and threatened by the PA.  His travel documents show that he travelled to Australia in 1993, Singapore in 1994, Australia in 1995, Singapore in 1996 and Australia in 1998.  He and the applicant wife did not lodge his application for a protection visa until November 1999.  The Tribunal is not satisfied that the applicant husband experienced persecution as a result of his brother’s support for the UNP before he departed Sri Lanka in 1999.”

1. As with the first applicant, the Tribunal expressed itself not satisfied that the second applicant had suffered the past persecution which he claimed.  It further found that he had “embellished his evidence to further his claim for refugee status”.  Accordingly, it found that there was no real chance that the second applicant would face persecution for a Convention reason if he were to return to Sri Lanka.

2. By their amended application the applicants contend that;

   “The Tribunal made an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision:  s.476(1)(e) of the Act.”

1. By way of particulars of that ground it is recited;

   “The Tribunal did not have regard to my statements and requests for consideration of my mental status.  I make this noted as my mental status entirely and significantly elaborate reasons for fearing persecution. 

   The Department of Immigration and Multicultural Affairs and the Refugee Review Tribunal despite my explanation indicating my condition in my submissions did not take this into consideration.”

1. Reference is made to the submission to the Department at p 28 of the court book and a submission to the Tribunal at p 126 of the court book.  The particulars continue;

   “The Tribunal did not consider my condition nor did they provide any comment in this regard in the decision. 

   I attach herewith a letter explaining my condition from my treating psychiatrist, Dr Melvin Pinto who will be giving evidence before the court.

   I also request the court to consider that I have no legal representation but strongly believe that my situation was not given consideration and humbly request that my case be given the required attention as my future and my life depends on the outcome of this decision.”

1. The Court did not consider it appropriate to receive evidence from Dr Pinto but did have before it a letter from him dated 10 September 2001, which is in these terms;

   “Mrs LaFaber was referred by her General Practitioner, Dr D C Jayasekera, for assessment and treatment of a depressive illness of long duration. 

   Her illness has had its origins in an unresolved prolonged and severe grief reaction, following the tragic and violent death of her first husband.  The latter was a pilot in the Sri Lankan Air Force.  The Avro passenger aircraft he was piloting had been shot down by missile fire by the Sri Lankan Tamil Tiger terrorists.  At the time of his death on 28 April 1995, they had been married only four months after a courtship since age of 14 years.  She had not been able to view his body which had been in a sealed casket.  Since then she had gradually developed avoidant phenomena, such that she now avoids any event or occasion which reminds her of the tragedy in her life.  As such she is even terrified of returning to Sri Lanka and her former home.

   She now manifests the features of a full blown severe depressive illness with sadness of mood, loss of all enjoyment and pleasure, marked irritability, sleep and appetite disturbances, feeling of hopelessness, etc.  She has thoughts it is not worth living and has tried to harm herself by overdose on two occasions, and after her first husband’s death had been planning to shoot herself with the latter’s hand gun which had been removed from her.

   She has been commenced on treatment for these illness with the antidepressant Avanza, 30 mg every night, and counselling. 

   She is now extremely anxious about having to leave Australia in case her application for permanent residence status is unsuccessful, leading to worsening of her depressive features.”

1. The first applicant’s own evidence of her depressive state was clearly corroborative of the distress occasioned by the death in action of her first husband.  However, the Tribunal accepted that fact.  What it did not accept was that the first applicant was subsequently harassed or persecuted by the LTTE.  Its reasons for that non-acceptance were explained by reference to its assessment of the plausibility of the first applicant’s account.  As McHugh J has said in Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407, at [67];

   “..... a finding on credibility is the function of the primary decision-maker par excellence.  If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed.  The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.  In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”.  The disbelief arose from the tribunal’s view that it was inherently unlikely that the events had occurred as alleged.”

1. There is nothing in the Tribunal’s reasons to suggest that in that or any other respect it asked itself a wrong question or took into account an irrelevant consideration or failed to take into account a relevant consideration.  Similar observations can be made of the Tribunal’s evaluation of the claims of the second applicant to a well-founded fear of persecution for a Convention reason as a result of political opinion imputed to him by reason of his brother’s membership of the UNP.

2. For these reasons I have been unable to discern any error of law in the reasoning of the Tribunal.  Since it is not permissible or appropriate for this Court to form its own view of the facts or otherwise of the merits of an application, it is not open to me to accord either of the applicants any relief.  That is not to say that the Court lacks sympathy for the applicants in the circumstances in which they find themselves or for the clearly evidenced depressive illness from which the first applicant suffers.  Nevertheless, because of the constraints imposed by the law, the application of both applicants must be dismissed, with costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:             13 September 2001

The applicants appeared in person.
Counsel for the Respondent:	Mr J Gibson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	13 September 2001
Date of Judgment:	13 September 2001