Schwallie v The Minister for Immigration and Multicultural Affairs

[2000] FCA 1623

FEDERAL COURT OF AUSTRALIA

Schwallie v The Minister for Immigration and Multicultural Affairs [2000] FCA 1623

Migration – review by Refugee Review Tribunal – whether the Tribunal failed to comply with the procedural requirements of s 430(1) of the Act.

Migration Act 1958 (Cth), ss 430(1), 475, 476(1)

Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 followed
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 referred to

Matter No. S 59 of 1999

DAMIAN ERROL CHRISTOPHER SCHWALLIE v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

VON DOUSSA J
ADELAIDE
15 NOVEMBER 2000

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 59 OF 1999

BETWEEN:	DAMIAN ERROL CHRISTOPHER SCHWALLIE APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	von DOUSSA J
DATE OF ORDER:	15 NOVEMBER 2000
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant to pay the respondent’s costs of the application.

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	S 59 OF 1999

BETWEEN:	DAMIAN ERROL CHRISTOPHER SCHWALLIE APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	von DOUSSA J
DATE:	15 NOVEMBER 2000
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an application under s 475 of the Migration Act 1958 (Cth) (the Act) to review the decision of the Refugee Review Tribunal (the Tribunal) which upheld a decision of a Delegate of the respondent Minister that the applicant, his spouse and two children are not persons to whom Australia has protection obligations under the United Nations 1951 Convention Relating to the Status of Refugees (the Convention) as amended by the 1967 Protocol Relating to the Status of Refugees, and therefore are not entitled to the grant of Protection Visas.

2. The applicant contends that review should occur on the ground that procedures required by the Act to be observed in connection with the making of the decision were not observed: see s 476(1) of the Act. The procedure which it is said was not observed is that set out in s 430(1) of the Act which reads:

   “(1)Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

   (a)sets out the decision of the Tribunal on the review; and

   (b)sets out the reasons for the decision; and

   (c)sets out the findings on any material questions of fact; and

   (d)refers to the evidence or any other material on which the findings of fact were based.”

3. At the time of the Tribunal’s decision, the applicant was a twenty-nine year old male citizen from Sri Lanka who had arrived in Australia on 29 December 1997.  On 3 February 1998 he lodged an application for a Protection Visa with the Department of Immigration and Multicultural Affairs which raised for consideration and determination his status as a refugee within the meaning of the Convention.  Article 1, clause A(2) of the Convention relevantly defines a refugee as a 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….”

4. The applicant based his claim for refugee status on alleged persecution for reasons of political opinion.  However his supporting statement lodged with his application also referred to his grandfather being a Burgher and his grandmother being a Tamil.  The Tribunal therefore considered whether the applicant had been persecuted for any of the reasons of race, religion or real or imputed political opinion.  The Tribunal concluded that the applicant did not have a well founded fear of persecution for a Convention reason and that it was not satisfied that he is a person to whom Australia has protection obligations under the Convention.  The Tribunal drew the same conclusions in regard to the applicant’s spouse and children as they did not make claims that were over and above those made by the applicant.

5. The hearing of this review was initially delayed pending the decision of a Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469. That decision has now established that the preparation of a statement of reasons in compliance with s 430(1) of the Act is a procedure, and is one the Act requires to be observed in connection with the making of a decision by the Tribunal not to grant a Protection Visa. If the statement of reasons does not comply with s 430(1) because it fails to set out findings on a question of fact which the Court holds to be material, then the decision may be set aside under s 476(1)(a) for want of procedural compliance: see Singh at 480, par 43.

6. The applicant relies on s 430(1)(c) and (d) and contends that the statement of reasons published by the Tribunal fails to set out findings on material questions of fact and fails to refer to evidence and other material said to be relevant to those material questions of fact.

7. Prior to the hearing by the Tribunal the applicant submitted to the Tribunal a statement in support of his application for review which referred to a report, compiled by Ms Arna Stewart, a counsellor advocate from the Victorian Foundation for Survivors of Torture Inc, which had been submitted to the Delegate.  The applicant described Ms Stewart as “being an independent assessor of our plight” and described her report as “an accurate reflection of all that we have gone through by way of sufferings and persecution in our own motherland for political and other reasons.  It is also a report that covers the entirety of what transpired in the course of the investigation and discussion which took place between us and Arna Stewart”.

8. The applicant complained to the Tribunal that the Delegate had failed to give adequate weight to the information contained in Ms Stewart’s report. 

9. The applicant also submitted to the Tribunal a letter from Mr Alan Griffin MP which attached a letter from Ms Scharley, a community health nurse, who had had considerable contact with the applicant’s family.

10. The applicant contends before this Court that these reports, and in particular the report of Ms Stewart, raised matters of fact that were material to the decision that the Tribunal was required to make.  It is contended that one of the reasons which actually induced the Tribunal to come to its decision was that it decided to reject or place no weight on the material in these reports, yet the Tribunal in its reasons for decision failed to disclose its reasoning process for doing so, and failed to make findings on matters to which the reports were directed.

11. In Singh, the Full Court dealt with the meaning of “material question of fact” in s 430(1)(c). At 481, pars 47-48 Black CJ, Sundberg, Katz and Hely JJ said:

    “47     Ordinarily, materiality is an objective concept.  If the RRT [the Tribunal] fails to make a finding on a fact which is in truth, as a Court subsequently determines, a material fact, then s 430(1)(c) will not have been complied with, even though the RRT has recorded its findings in relation to the facts before it that it regarded as material.

    48       The generally accepted view in this Court has been that the RRT is under a duty to make, and to set out, findings on all matters of fact that are objectively material to the decision it is required to make.  It must make findings on questions of fact that are central to the case raised by the material and evidence before it…”

    and at 482, pars 54-55 the Court said:

    “54     We do not accept that the material facts referred to in s 430(1)(c) are confined to the facts the statute requires to be decided.  Obviously they include those facts, but whether a question of fact is otherwise material may be influenced or determined by the way the Tribunal has approached the case, as revealed by its reasons for decision.

    55       The reasoning process a Tribunal adopts may require a decision on a question of fact in order to complete the logical chain the Tribunal has adopted as the basis for its decision.  Failure by a Tribunal to set out its findings in relation to that fact would involve a contravention of s 430(1)(c), as the process of reasoning adopted by the Tribunal has made that fact a material fact, since the decision is dependent upon it.  Conversely an applicant may propose facts as material, but if the ultimate conclusion reached by the Tribunal is not dependent upon and does not require a finding on those facts, then they will not be material questions of fact, because the decision does not turn upon them.”

12. It is necessary therefore to look at the process of reasoning and conclusion of the Tribunal, and then to consider how the reports of Ms Stewart and Ms Scharley relate to that reasoning process.

13. The applicant asserted a genuine fear of persecution if he and his family were to return to Sri Lanka.  The basis of that fear was said to arise from a combination of life experiences in Sri Lanka leading up to his departure at the end of 1997.  The Tribunal analysed the applicant’s account of these experiences to see whether the events said to give rise to the applicant’s fear came about for a Convention reason – that is did they happen for reasons of race, religion or real or imputed political opinion.  The Tribunal held that they did not.

14. The Tribunal also considered whether the fear asserted by the applicant was a “well founded fear of persecution” within the meaning of Article 1A(2) of the Convention.  The Tribunal correctly held that this is a question that must be decided at the time the decision is made, and that the notion of a well founded fear of persecution has both a subjective and an objective element.  The applicant must have a subjective fear, and there must be an objective justification or basis for the fear.  In Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 the High Court of Australia held that the fear of persecution is well founded if there is a “real chance” of being persecuted on return to the country of nationality. The Tribunal held that the applicant, his spouse and children, could return to Sri Lanka and resume their usual life without a real chance of being persecuted on account of their race, religion or real or imputed political opinion, or for any other Convention reason. The Tribunal added that if the applicant on return were to perceive any potential harm he could seek the protection of the relevant security agencies, in the knowledge that there is a record that they will act expediently to protect him and his family.

15. Central to the outcome of this application, the Tribunal in expressing its ultimate finding said:

    “There is no reason to doubt that the applicant and his family have been traumatised by events in Sri Lanka, particularly as one incident resulted in his spouse almost miscarrying their child.  No doubt it was a shock that intruders entered their house and caused massive damage to their property…[referring to an incident in 1997]

    … The Tribunal accepts that he (the applicant) fears returning to a country that is war torn and is a difficult place to raise a young family.  However that does not disclose a Convention reason.  Rather, it is an understandable fear of insecurity and random violence that is experienced by all Sri Lankan citizens, regardless of their race, religion, nationality, membership of particular social group or political opinion.”

16. In short the Tribunal accepted that the applicant had a subjective fear of persecution arising from the past events which happened to him in Sri Lanka, but held that these events did not happen for a Convention reason and that if he were to return to Sri Lanka there was no objective basis for a continuing fear of persecution for a Convention reason.

17. It is against that process of reasoning that the materiality of the reports of Ms Stewart and Ms Scharley must be considered.

18. Ms Stewart’s comprehensive report first relates the history of events experienced by the applicant and his family in Sri Lanka as described to her by the applicant and his wife.  That history is basically the same history of events related to the Tribunal by the applicant, his wife and witnesses in oral evidence which history the Tribunal has analysed in its reasons for decision.  Ms Stewart then expresses her opinion about the psychological functioning of the applicant and his family.  She concludes that the applicant and his wife are suffering a post-traumatic stress disorder.  In relation to Mr Schwallie she said:

    “He displays fear and nervousness.  He is grieving and expressing extreme guilt that his family have suffered.  It is my opinion that these symptoms are the direct result of his experiences of persecution in Sri Lanka.  It is also my opinion that these symptoms are maintained by his subjective fear of returning to Sri Lanka.”

19. Ms Scharley’s report says that the applicant and his family were shocked and traumatised by their experiences in Sri Lanka and fear returning.

20. These reports are highly relevant to the question whether the applicant has a genuine fear of returning to Sri Lanka.  That however is a fact accepted by the Tribunal in the applicant’s favour.  It is not the case that the Tribunal gave no weight to or rejected the evidential thrust of the reports in that respect.

21. As the Tribunal accepted that the applicant (and his family) had a subjective fear of persecution if they were to return to Sri Lanka there was no need for the Tribunal to refer at any greater length than it did to these reports which, as the Tribunal said, were consistent with the sworn evidence before the Tribunal given both by the applicant and his wife.  The relevant material finding of fact was that the applicant held a genuine fear of persecution.  That finding was expressly made, and the Tribunal referred both to Ms Stewart’s report, and to the sworn evidence upon which the finding was plainly based.  The Tribunal has in fact given full weight to the reports of Ms Stewart and Ms Scharley insofar as they had any evidentiary value, but the applicant has failed on other grounds.

22. The evidential value of Ms Stewart’s report lies in her opinion as to the psychological functioning of the applicant and his wife. As a basis for that opinion Ms Stewart has related the past history of the applicant and his wife as it was given to her by them. In the course of argument, counsel for the applicant contended that the Tribunal failed to comply with s 430(1) as it had not given reasons for rejecting parts of the applicant’s history, as recorded by her, that showed that there had been a failure of state protection of the applicant in Sri Lanka. Even if this argument were correct, it does not address at all the finding of the Tribunal that the events which happened to the applicant were not for a Convention reason. The argument is however not correct. The primary evidence before the Tribunal, which was material to the happening of those events, lay in the oral evidence of the applicant and his witnesses, and the applicant’s statement. Ms Stewart’s recorded history was substantially the same, and added nothing to the evidence. For this reason her report so far as it related to those events was not material. Moreover, the Tribunal accepted the evidence of the applicant as to the events which happened so that Ms Stewart’s history is not inconsistent with the findings of the Tribunal.

23. The Tribunal’s findings are not based upon a rejection of the evidence of primary facts given by the applicant and his witnesses. On the contrary the primary facts have been accepted by the Tribunal, but the Tribunal in its analysis of those facts arrived at inferences and conclusions which differed from the inferences and conclusions which the applicant sought to draw from those facts. The Tribunal has clearly stated its findings about those inferences, and has disclosed in detail its reasoning process. In these respects there has been no failure to comply with s 430(1).

24. Particular emphasis was given by counsel for the applicant to the description of the 1997 incident as recounted in Ms Stewart’s report, namely:

    “Mr Schwallie moved his family to live with his parents as they believed that they would be safer as a larger group.  They selected a house near the Mulleriyawa Police Station, in order to maximise feelings of safety.  Their fear was apparent… ‘We got a big upstairs house [2-storey] with a big wall around.  We got two alsation dogs’.  The dogs were in the backyard of the house on the night of the attack in August 1997… ‘We had the dogs at the back.  We didn’t expect people to just walk into the front of the house’.  Mr Schwallie spoke angrily about the group of men who forced their way into the house.  His fear was obvious when he stated ‘There were at least ten of them.  I thought there were enough of them to get us’.  As stated in the Statutory Declaration, Mrs Schwallie was seven months pregnant at the time, and slipped and fell during the escape.  She cried as she spoke of her fear of harm to the child… ‘I thought I was going to lose the baby.  I never thought people would try to come and harm a pregnant woman.  I don’t know what they would have done if we hadn’t escaped.  People who attack don’t have their senses’.  When asked who had been responsible for the attack, Mr Schwallie stated… ‘They had to be from some opposite political party.  I knew this because they kept calling us and telling us that they’d kill us’.

    Mr Schwallie described the extreme fear and vulnerability experienced by the family after the attack.  He stated ‘We couldn’t go back into the house, but we had to for a few days.  We had all our relatives come to stay with us for security.  We were so frightened, we all slept together’.  Mr Schwallie stated that his son Marsh yelled every night in his sleep following the attack.  He again moved his family to another home… ‘This house was very small.  We had neighbours all around us to feel safe.  Yet we were so scared.  We wondered when they [the assailants] would come back’.  At this point Mr Schwallie believed the fear experienced by his family was of such severity that he had no option but to arrange for them to leave Sri Lanka.  Mr and Mrs Schwallie, Marsh Schwallie and 8 week baby Miquela arrived in Australia in December 1997.  They joined Mr Schwallie’s parents and sister Nicola, who had similarly fled Sri Lanka in fear for their lives.  Mr Schwallie stated… ‘We had to leave.  The people who attacked us would have come after us.  They missed us once, they wouldn’t miss us again.  We would have been killed and our two children’.”

25. That incident was enlarged upon by the applicant and his witnesses before the Tribunal.  After describing incidents leading up to 1994 the Tribunal in describing the applicant’s case said:

    “Nevertheless, he continued to receive threatening phone calls and mail, demanding that he quit supporting the UNP or he would be killed.  He said he had also received such threats in 1991, 1993 and 1994.  He moved to a large house with his parents, where he thought he would be secure, but in August 1997, as he was sitting with his wife and child in the upstairs section, he was warned by his father that some youths were tampering with the gate and trying to break in.  The family fled but the Applicant’s spouse, who was seven months pregnant, had a fall and had to be taken to hospital as she suffered heavy bleeding.  The Applicant accompanied her, but his parents remained with neighbours.  The matter was reported to police and when the Applicant returned the next day he found that the house had been totally vandalised and ransacked.  The police were there, as his father had reported the incident, and they took photographs and fingerprints.  Senior police were involved and there were several visits to the house in the ensuing days.  However, no arrests were made as the intruders could not be identified.

    The damage to the house and the attendance of the police was confirmed by the evidence of Mr. and Mrs. Tabor, who had been visiting Sri Lanka and had come to the house the morning after the intrusion.  Mr. Tabor related that he was a journalist in Poland and had experienced political persecution and he recognised that the damage to the house indicated it was perpetrated by political opponents.”

1. The Tribunal held that the response of the Sri Lankan authorities to the 1997 incident, and another described by the applicant, demonstrated that the authorities took appropriate action to protect the applicant and his family.  Detailed reasons were given for rejecting the applicant’s argument that there had been a failure of state protection in relation to the 1997 incident.  The Tribunal said:

   “The Tribunal has considered the claim that the forced entry into the family house in 1997 was an attempt to harm the Applicant and his family.  At that stage, the Applicant had not participated in political activities for three years, since before the 1994 presidential elections.  After that, he had not been harassed.  His father had never participated in political activities and his affiliation with the UNP had been severed when he left President Premadasa’s employ when he was assassinated in May 1993.  The Applicant and all of his family members were able to flee to a neighbouring house without being pursued by the intruders, despite his fears that he was being targeted because of his political opinions.  On the other hand, the Applicant was not approached at his workplace although he had been in the same job since 1995.  Nor was his family otherwise harassed at home or in the street, despite the Applicant’s evidence that his job took him away from home at times.  The police investigated the forced entry and trashing of the family house, but did not apprehend anybody.  Senior police conducted the investigation and several visits were made to the house as the investigation was pursued.

   The Applicant’s evidence does not disclose that the gang that entered the house were motivated by the Applicant’s political opinions or any other Convention reason, notwithstanding the Applicant’s suspicions.  Like the assault in 1994, the action taken by the authorities demonstrates that they act appropriately to protect Sri Lankan citizens.  In all of the circumstances, the Tribunal is satisfied that the forced entry and vandalism at the Applicant’s family home was a criminal act, unconnected to any of the reasons in the Convention.  It is not an indication that there is a real chance that he might be persecuted on account of his political opinions should he return to Sri Lanka.”

2. The conclusions of the Tribunal, including the findings of fact implicit in them in relation to the 1997 incident, are not inconsistent with any of the primary facts about the incidents related in Ms Stewart’s report.  The statement in that report that those responsible for the attack “had to be from some opposite political party” is an inference from the primary facts which the Tribunal was not prepared to accept for the reasons it gave.  There is nothing in the account of the 1997 incident in the report of Ms Stewart that provides evidence of a failure for a Convention reason to provide state protection to the applicant and his family.  On the contrary, when the incident occurred the police appear to have acted in the manner that could be expected from a protective security force.

3. In my opinion the applicant has failed to demonstrate a failure to comply with the procedures required by s 430(1) of the Act and the application must be dismissed.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice von Doussa.

Associate:

Dated:             

Counsel for the Applicant:	Mr M W Clisby
Solicitor for the Applicant:	Mr M W Clisby
Counsel for the Respondent:	Ms S J Maharaj
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	10 November 2000
Date of Judgment:	15 November 2000