Selvarajah v Minister for Immigration & Multicultural Affairs

[1999] FCA 724

FEDERAL COURT OF AUSTRALIA

Selvarajah v Minister for Immigration & Multicultural Affairs [1999] FCA 724

MIGRATION - appeal from decision of primary judge dismissing an application for judicial review - Tribunal clear in its rejection of appellant's account of past events in Sri Lanka - no point of principle.

EDWARD JOY SELVARAJAH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 1303 of 1998

MOORE, BRANSON & MARSHALL JJ
26 MAY 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1303 OF 1998

BETWEEN:	EDWARD JOY SELVARAJAH Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent
JUDGE:	MOORE, BRANSON & MARSHALL JJ
DATE OF ORDER:	26 MAY 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The appeal is dismissed with costs

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1303 OF 1998

BETWEEN:	EDWARD JOY SELVARAJAH Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE:	MOORE, BRANSON & MARSHALL JJ
DATE:	26 MAY 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

MOORE J:

1. This is an appeal from a judgment of O'Connor J of 24 November 1998 dismissing an application for judicial review of a decision of the Refugee Review Tribunal of 12 June 1998.  The decision affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs refusing the appellant a protection visa. 

2. The application for the protection visa was made by the appellant in circumstances where he contended he had a well-founded fear of being persecuted were he to return to his country of nationality, Sri Lanka.  The background of the application is found in the reasons for judgment of the learned primary judge in the following passage:

   The applicant is a citizen of Sri Lanka who arrived in Australia on 17 February 1997.  The applicant was born in Jaffna, he was married in Colombo in June 1992 and his children were born there in April 1993 and December 1996.  He studied in Colombo in 1983 and then in India from September 1984 until April 1989.  The applicant's passport was issued on 22 January 1997 annotated "ceased to be valid on return to Sri Lanka" and "NONIC"; his Australian visa was issued on 31 January 1997 and he left Sri Lanka legally on 16 February 1997.  The applicant has tertiary qualifications and was a self-employed businessman from 1991 until January 1997.

   The applicant claims that while he was at university he was harassed and humiliated by students of the Liberation Tigers of Tamil Eelam ("LTTE") because he refused to be recruited to the LTTE.  The applicant then went to India to complete his studies.  When the LTTE tried to recruit him there he returned to Colombo and set up his own business in 1989 transporting goods to Jaffna and Trincomalee.

   Before he married in 1992 the applicant claims that on his travels he was threatened by the LTTE; it suspected him of contacts with the Crime Detection Bureau and of passing information about the LTTE to the security forces.  In Colombo he was summoned by the police several times about the LTTE's movements.  He was arrested, questioned and assaulted on numerous occasions.

   After 1991 he travelled about six or seven times a year.  He had to pay the LTTE so that he could transport goods to Jaffna and he was delayed at army checkpoints because it was assumed that people like him were taking contraband to Jaffna; often he bribed soldiers or gave them some goods to be allowed to proceed.  The applicant claims that on three occasions he was detained and assaulted in Vavuniya by security forces before being allowed to proceed.  On four occasions he was detained and assaulted at a particular police station in Colombo, he was released on payment of bribes.

   In Jaffna the applicant was pursued by the LTTE to help with paperwork and the LTTE threatened the applicant's wife.

   After the transport of certain goods to Jaffna was banned the LTTE approached the applicant to smuggle items into Jaffna; he refused and he was assaulted.  The LTTE threatened to refuse to allow his wife to go to Colombo for medical reasons so he agreed and did this work until Jaffna was captured by the Army in 1995.  The applicant also transported banned generators to Jaffna on demand from the LTTE and for profit.

   In December 1996 the applicant claimed that he and an army officer stationed in Vavuniya obtained a pass to send three generators there; they altered the pass to read thirty.  The applicant was stopped and his goods were thoroughly searched by different army officer near Vavuniya.  The applicant claimed the pass was genuine, could be checked with the first army officer.  After this was done the applicant was released and told to go back to Colombo.  The security forces found batteries in his bicycle in Vavuniya and they assumed he had been transporting banned goods for some time.  He was accused of being an LTTE supporter and questioned about LTTE activities in Colombo; his parents paid a large bribe for his release.

   The applicant said he paid a Sinhalese agent to get a passport for him.  He went to the Australian High Commission in Colombo and applied for a visa and then paid an immigration officer to allow him to leave Sri Lanka. 

3. The appellant then applied to the Department of Immigration and Multicultural Affairs for a protection visa on 5 March 1997.

4. In this appeal the appellant, as the notice of appeal was originally framed, raised one issue only.  It was whether the trial judge erred in holding that the Tribunal was not required to adopt a speculative approach to the consideration of the claims of the appellant.  In addition, however, oral application was made to add additional grounds of appeal.  They were whether the Tribunal based its decision on the existence of a fact that did not exist and whether the Tribunal considered or failed to consider whether the applicant had a well-founded fear of persecution based on imputed political opinion.  Counsel for the Minister did not oppose these additional grounds being raised.  I will return to those two additional grounds later.

5. The Tribunal's approach to the claims of the appellant about his experiences in Sri Lanka involved, in substance, a wholesale rejection of those claims.  The Tribunal's reasons set out various versions of what the appellant said had occurred to him before he left Sri Lanka.  There were four matters of substance raised by the appellant concerning what had occurred.  His account of each was rejected by the Tribunal.  The Tribunal, in substance, found that the appellant was not credible and for reasons it explained in its decision, rejected the account of the appellant as to what had occurred in relation to the four matters during the period 1991 to the time he left Sri Lanka.

6. In this appeal the first ground relied upon by the appellant concerns whether or not the Tribunal failed to apply what is colloquially described as the "what if I am wrong" test.  It is contended that the Tribunal should have, notwithstanding its rejection of the appellant's account, embarked upon a consideration of what the position might be if its rejection of the appellant's account had, in fact, been wrong.  This issue was dealt with by the primary judge who expressed the view that the decision maker's findings about the account of the appellant were findings about which the decision maker had no doubt.  That is, the Tribunal was clear in its rejection of the appellant's account of events in Sri Lanka.

7. The need for the Tribunal to engage in the process of considering whether the appellant had a well founded fear concerning events in the future has to be viewed in the context of the way in which the Tribunal considered the appellant's account of the past.  In this case, it is clear in my view that the Tribunal rejected, with considerable conviction, the appellant's account of what occurred in Sri Lanka before coming to Australia.  This case is not an appropriate vehicle to consider in detail the present state of the law following the recent decision of the High Court in Abebe v Minister for Immigration & Multicultural Affairs (1999) 171 ALR 711. It is sufficient to say that in the present case the Tribunal firmly rejected the appellant's account of past events. It was, in those circumstances, unnecessary for the Tribunal to engage in the process of considering the existence of a fear as to the future divorced from its firm views about the claims of the appellant concerning the past. Accordingly, I am not satisfied that the appellant has made out the first ground of appeal.

8. The second and third grounds were, as noted earlier, that the Tribunal based its decision on the existence of a fact where that fact did not exist and that, in some way, the Tribunal erred in its consideration of whether the appellant had a well founded fear of persecution based on his imputed political opinion.  The second ground concerning the non-existence of a fact was effectively abandoned in the course of the appeal.  The solicitor appearing for the appellant was not able to point to any fact, the existence of which the Tribunal based its decision on, that was a fact that did not exist.  As to the contention that the Tribunal erred in its consideration of whether the appellant had a well founded fear of persecution, this ground, in my view, is not made out.  It is not made out because it was unnecessary for the Tribunal to embark upon a consideration of what might happen to the appellant, having regard to an imputed political opinion, given the views it took about the likelihood of the appellant being exposed to harm of any description were he to return to Sri Lanka and its rejection of the account of the appellant of events in Sri Lanka before coming to Australia.

9. The appellant has failed to make out any of the grounds of appeal.  Accordingly, I would dismiss the appeal with costs.

   BRANSON J:

10. I agree. I wish only to add that this was in reality, as it seemed to me, a case in which the appellant sought review by this Court of the Tribunal's adverse finding of credibility against him. This Court does not have the power to interfere with the Tribunal's assessment of the credibility of an applicant for a visa. The grounds upon which a decision of the Tribunal can be reviewed in this Court are set out in s 476 of the Migration Act 1958 (Cth). In my view, no ground there identified, has been made out in this case.

    MARSHALL J:

11. I agree with the reasons for judgment of the presiding judge and with the order he proposes.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court

Associate:

Dated:            3 June 1999

Solicitor for the Applicant:	J Narayanasamy, Jayram & Associates
Counsel for the Respondent:	M Leeming
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	26 May 1999
Date of Judgment:	26 May 1999