SWVB v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCAFC 168

FEDERAL COURT OF AUSTRALIA

SWVB v Minister for Immigration and Multicultural and Indigenous Affairs
[2005] FCAFC 168

SWVB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

SAD43 OF 2005

FINN, EMMETT AND BENNETT JJ
19 AUGUST 2005

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 43 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	SWVB APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	FINN, EMMETT & BENNETT JJ
DATE OF ORDER:	19 AUGUST 2005
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant 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 43 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

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

JUDGES:	FINN, EMMETT & BENNETT JJ
DATE:	19 AUGUST 2005
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an appeal from a decision of Selway J of 8 February 2005.  His Honour dismissed the appeal from the decision of the Refugee Review Tribunal (‘the Tribunal’) to affirm the decision of a delegate of the respondent (‘the Delegate’), to refuse to grant the appellant a protection visa.

   Background

2. The appellant is a Sri Lankan citizen who first arrived in Australia on 8 January 1996.  He applied for a protection visa on 30 June 1997.  On 29 March 2000 the Refugee Review Tribunal (‘the first Tribunal’) affirmed the decision of a delegate of the respondent not to grant a protection visa.  The first Tribunal concluded that the appellant did not have a well-founded fear of persecution by the Sri Lankan authorities or the Liberation Tigers of Tamil Eelam (‘the LTTE’) for reason of actual or imputed political opinion, or by the Sri Lankan authorities for reason of his membership of a particular social group of ‘army deserters.’

3. At the first Tribunal hearing, the appellant expressed concern that his psychological condition would affect his ability to give evidence but he subsequently agreed to proceed with the hearing and to forward a psychiatric report to the first Tribunal.  A report by a clinical psychologist dated 17 January 2000 was later submitted.  The psychologist concluded that the appellant suffered from depression and had residual symptoms of post traumatic stress disorder as a consequence of traumatic experiences in Sri Lanka. 

4. The appellant 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, which is the subject of the present proceedings.  In his second application the appellant claimed that he joined the Sri Lankan army in 1993 (but later corrected that date to 1995) and deserted soon afterwards.  He 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.  The appellant said that his main concern was fear of being court-martialled for the illegal activity of selling arms and fear that those involved in the illegal activity may want to ensure his silence.  The Delegate refused the application on 28 June 2004.

5. On 16 August 2004, the Tribunal affirmed the decision of the Delegate to not grant a protection visa.  The Tribunal was not satisfied that the appellant had a well-founded fear of persecution for reasons of actual or imputed political opinion or for any other Convention reason if he returned to Sri Lanka.

   The Tribunal Decision

6. The Tribunal accepted that the appellant had joined the Sri Lankan army and that he had deserted after a few months.  The Tribunal noted that the appellant did not claim in the second application to fear retribution for his desertion.  That is, the appellant did not claim a fear of persecution for reason of his membership of a particular social group of “army deserters”.

7. The appellant put to the Tribunal that inconsistencies in his evidence before the Tribunal and before the first Tribunal were due to his psychological condition and memory loss.  This explanation was not accepted by the Tribunal. 

8. As set out in the decision of the primary judge at [8], the Tribunal found that the appellant did not have a well-founded fear of persecution because it rejected the appellant’s credibility:

   ‘In this case the Tribunal accepts that [the appellant] is a citizen of Sri Lanka as claimed.  However, having carefully considered [the appellant’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 appellant] 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 appellant’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 appellant’s] key claim implausible.  More generally the Tribunal has serious concerns about [the appellant’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 appellant] deserted the Army after a few months.  Although the adviser suggested in submissions that the authorities were looking for [the appellant], at least in part for this reason, [the appellant] 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 appellant] 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 appellant’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 appellant’s] various explanations for this unconvincing …

   There are other reasons for rejecting [the appellant’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 appellant’s] 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 appellant’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 appellant’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 appellant’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 appellant] when, and his brother refers to the underworld being after him yet the thrust of [the appellant’s own evidence is that he fears the senior officers involved in the arms incident. 

   In sum, the Tribunal does not accept that [the appellant’s] key claims are credible and accordingly, the Tribunal is not satisfied [the appellant] 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.’

   (emphasis added)

   Decision of the primary judge

9. The grounds of the application before the primary judge were:

   ‘1. That the Refugee Review Tribunal exceeded its jurisdiction in making its decision to affirm the respondent’s decision; and

   2.   That the Refugee Review Tribunal constructively failed to exercise its jurisdiction in arriving at its decision.

   3.   That the Refugee Review Tribunal erred in failing to find that [the appellant’s] claim of persecution was well founded given his particular circumstances both at the time of the decision and into the future.

   4.   That the Refugee Review Tribunal erred in its interpretation of the cessation clause under the Refugee Convention 1951 and its application to [the appellant].

   5.   That the Tribunal failed to provide [the appellant] with the opportunity to comment on identity and contents of the letters that he provided to the Tribunal from his sister and his employer, which such letters, if accepted, by the Tribunal corroborated [the appellant’s] fear of persecution and reprisals from the authorities.

   6. That the Tribunal failed to comply with s424A of the Migration Act 1958 as it failed to advise [the appellant] that the letters would be a factor, or a part of the reason for affirming the decision.’

10. The primary judge noted that the appellant had complained in his application for review that the Tribunal decision was in error on the merits.  Selway J held that even if this were correct, it did not give rise to jurisdictional error, nor was there anything in the material before him that suggested any error on the part of the Tribunal.

11. At [10] – [11] Selway J held:

    ‘The only possible ground of jurisdictional error alleged in the application was that the Tribunal failed to afford the [appellant] 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 [appellant] 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 to the contrary.  The [appellant], 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… That letter is specifically referred to in the Tribunal’s reasons.’

12. His Honour held that the appellant was given an opportunity to comment on the genuineness of the letters in accordance with s 424A and that the appellant was afforded procedural fairness.  It can be seen, however, that the Tribunal made its decision based upon the credibility of the appellant and that the letters were not the reason or a part of the reason for the Tribunal’s decision.

    Notice of appeal

13. The notice of appeal lists the following as grounds of appeal:

    “Learned Federal Court judge Selway J did fail to consider the psychologist report that was submitted to RRT hearing in relation to my first application for protection.

    Learned Federal Court judge Selway J did fail to consider in his Honour’s decision that the psychologist’s report that was submitted to RRT hearing in relation to my first application for protection was not taken into consideration either by the RRT or DIMIA in relation to my second application for protection.

    Learned Federal Court judge Selway J did fail to consider in his Honour’s discussion the following: RRT requested a psychiatric assessment of mine in relation to my first application but the RRT took the decision without it, because I did fail to submit such report by the due date imposed by RRT; then, why did not both DIMIA and RRT seek out such report of mine in relation to my second application for protection.”

14. As to the first ground of the notice of appeal, the psychologist’s report was before the first Tribunal and was not mentioned in the application before the primary judge.  There was no suggestion that the psychologist’s report was in any way referred to before his Honour.  Accordingly, it cannot be said that his Honour was in error in failing to consider it. 

15. An aspect of the second ground of the notice of appeal repeats the first ground.  Further, the factual basis of this ‘ground’ is incorrect.  The Tribunal did consider the psychologist’s report when addressing the appellant’s claim that he was suffering from memory loss;

    ‘[The appellant] made claims relating to psychological conditions which affected his memory as an explanation for contradictions in his evidence.  The Tribunal notes that in connection with his first protection visa application (actually only at the time of the first Tribunal hearing) [the appellant] made similar claims but the psychological report he submitted did not specifically refer to memory loss.  In any case, no independent evidence has been submitted to support his current claim of memory loss being why, for example, he incorrectly claimed he was in the Army in 1993, and this Tribunal does not accept that [the appellant’s] ability to give evidence was adversely affected by his claimed psychological condition(s).  In addition, the Tribunal notes that there is considerable detail provided in his written statement which is at odds with his claimed memory loss, and the tape recording of his Departmental interview in June 2004 indicates that he responded readily and easily throughout the proceedings, as he did in giving oral evidence before this Tribunal.’

16. No error is established.

17. The factual basis of the third ground is again incorrect. Both the first Tribunal and the Tribunal referred to the report. Further, there was simply no obligation on the part of the Tribunal to make any inquiries regarding the matters raised in the psychologist’s report or to request another report for the second application. 

    Hearing of the appeal

18. The appellant did not provide any written submissions in support of his appeal.

19. The appellant appeared in person, by video link, at his own request.  An interpreter was present in the Court and it was also ascertained that the appellant did speak and understand English.

20. The appellant asserted his credibility and his ability to recall events.  He also stated his concerns about his safety on his return to Sri Lanka and the actions of persons there and his ability to obtain protection from high-ranking officers.  At the heart of his submissions was a desire to have this Court accept his credibility, which is not within our jurisdiction.

21. He observed that the psychological report was missing from the appeal book but did not make a further submission in that regard.

22. The appellant was unable to refer to any error on the part of the primary judge.

23. The appellant has not shown that the reasons or decision of the primary judge or those of the Tribunal were affected by error.  No error is shown.  The appeal should be dismissed with costs.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn, Emmett & Bennett JJ.

Associate:

Dated:             19 August 2005

The Appellant appeared in person via video link from Baxter Detention Centre.

Counsel for the Respondent:	S. Maharaj
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	18 August 2005
Date of Judgment:	19 August 2005