VPAW v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1655

FEDERAL COURT OF AUSTRALIA

VPAW v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1655

MIGRATION – no error of law – appeal dismissed

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, referred to

VPAW v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V881 OF 2004

MARSHALL J
15 DECEMBER 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V881 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	VPAW APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MARSHALL J
DATE OF ORDER:	15 DECEMBER 2004
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.   The appeal be dismissed.

2.   The appellant 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	V881 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	MARSHALL J
DATE:	15 DECEMBER 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of a Federal Magistrate. The judgment below dismissed the appellant’s application for judicial review of a decision of the Refugee Review Tribunal (“the RRT”).

2. The only issue for determination in the appeal is whether his Honour erred in not holding that the RRT failed to deal with an issue it was required to determine in the course of deciding the application before it.

   Factual background

3. The appellant is a young male from Sri Lanka, who is of Tamil ethnicity. He claimed to have a well founded fear of persecution if returned to Sri Lanka on account of imputed political opinion. He expressed concern about the way young Tamils are treated in Sri Lanka both by the security forces and the Liberation Tigers of Tamil Eelam (“the LTTE”).

4. The appellant was born in Jaffna in northern Sri Lanka in 1976. He claimed that in the mid 1990s he left Jaffna for Vanni. He also claimed to have travelled to Colombo in March 1999, staying there for a short while before going to India for a few weeks then returning to Colombo before travelling to the United Kingdom in September 1999 and on to Australia in April 2000.

5. At p 11 of its reasons for decision the RRT said:

   “The Tribunal noted that the applicant had claimed to have experienced numerous problems, but when he had the opportunity to go somewhere else or to seek protection, he had delayed or not done so. For example, despite claiming to have been tortured by the Sri Lankan armed forces on several occasions for more than a year, he had stayed in Jaffna to do his exams. He had gone to India, but had left after about a month because he didn’t like it and returned to Sri Lanka. He had gone to the UK but had not sought protection from harassment by the LTTE. His actions did not indicate that he was someone who was in fear of his life.

   The applicant said that if he went back to Sri Lanka he would be arrested at the airport and put in jail. He could not go back to Jaffna as he had no connections there. It would be dangerous for him to live in Colombo because Tamil youths were very badly treated.”

   The RRT’s reasoning

6. The RRT accepted that the appellant was a young Tamil male from Northern Sri Lanka. It disbelieved the central planks of the appellant’s claims, including:

   ·his alleged experiences in Jaffna between 1994 and 1996, at the hands of the LTTE and the security forces

   ·his alleged experiences in Vanni with the LTTE from December 1996 until early 1999

   ·his alleged detention and torture in Colombo by Sri Lankan authorities in 1999, before he travelled to India

   ·his alleged arrest on two occasions after returning to Colombo from India

   ·his alleged experiences in being threatened by the LTTE when studying in the United Kingdom

7. The RRT said that it was not satisfied about the truthfulness of the appellant’s account of past events. Critically it made a finding (at p.21) that he:

   “…has not been harmed in the past by either the Sri Lankan authorities or the LTTE…”

   It further considered that he had:

   “…fabricated his claims to have been persecuted in order to provide a basis for his application for refugee status in Australia.”

8. Despite not accepting the appellant’s evidence, the RRT considered whether there was a real chance that he faced persecution for a reason stated in the Refugees Convention should he return to Sri Lanka, given that he is a young Tamil male. The RRT was not satisfied that the appellant had suffered persecution but accepted that people with his profile had been treated with suspicion by authorities and suffered serious harm because of being imputed with a political opinion supportive of the LTTE.

9. The RRT considered that there had been substantial changes in the political and security situation since 1999, when the appellant left Sri Lanka.

10. It noted that “despite the political squabbling, the ceasefire has held for over a year and the negotiators have made significant progress”.

11. The RRT was satisfied that it would be safe for a young Tamil male born in the north to return to Sri Lanka. It was also satisfied that there was no real chance that the appellant would be persecuted in the reasonably foreseeable future by the authorities on account of his ethnicity or by reason of a perception that he supports the LTTE, given his profile. It further found that there was no real chance the appellant would be harmed by the LTTE. In that context the RRT said:

    “There is no need for the applicant to return to an LTTE–controlled area if he does not wish to do so.”

    The RRT immediately thereafter reaffirmed its state of satisfaction that if the appellant returned to Sri Lanka he would not be harmed by the LTTE for a Convention reason.

    The appeal point

12. Counsel for the appellant submitted that the RRT erred by saying that there was no need for the appellant to return to an LTTE–controlled area. He contended that the RRT should have assessed the appellant’s claims by reference to his region of origin i.e. the Jaffna region in northern Sri Lanka. The task which the RRT should have undertaken, so the argument ran, was to assess the risk the appellant faced if returned to Jaffna. Then the RRT should have considered the issue of relocation had it found it necessary to do so.

13. To support that submission, counsel referred to the judgment of Black CJ in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 442-3 and other authorities on the topic of re-location, emphasising that if a person has a well founded fear of persecution in relation to a part of the country, it may affect the person’s fear of persecution as to the whole of the country.

14. The appellant’s criticism of the RRT’s reasoning is misplaced. No error in the approach of the Federal Magistrate can be discerned. As counsel for the respondent submitted, in his written outline, the case actually advanced by the appellant before the RRT was that he did not intend to return to the northern, LTTE–controlled, area of Sri Lanka. Before the RRT the appellant did not claim that his risk of persecution was greater or less in any particular part of the country. Rather he feared to return to Sri Lanka generally; see [3] above.

15. More importantly, the part of the RRT’s decision seized upon by counsel for the appellant was a throw-away line which was not central to its reasoning process. Immediately before and after the “controversial sentence” the RRT stated that the appellant was not at risk of harm, for a convention reason, from the LTTE. Implicitly, it did not consider the appellant to be at risk of harm from the LTTE in LTTE–controlled areas in any event but was merely saying, in effect, that the appellant could avoid that possibility by residing elsewhere if he wished.

    Conclusion

16. In my opinion a fair reading of the RRT’s decision discloses that it committed no jurisdictional error in dealing with the appellant’s application and specifically did not fail to address the question whether the appellant would be persecuted if returned to his home region in Sri Lanka. The appeal is dismissed, with costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:             15 December 2004

Counsel for the Appellant:	Mr J. Gibson
Solicitor for the Appellant:	Wimal & Associates
Counsel for the Respondent:	Dr S. Donaghue
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	15 December 2004
Date of Judgment:	15 December 2004