Wahr v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 577

FEDERAL COURT OF AUSTRALIA

WAHR v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 577

MIGRATION – application for protection visa – fear of persecution – race - political opinion – no error of law disclosed – appeal dismissed

Migration Act 1958 (Cth) s 474
Judiciary Act 1903 (Cth) s 39B

NAAV v Minister for Immigration and  Multicultural and Indigenous Affairs (2002) 193 ALR 449 cited
Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 195 ALR 24 cited
Craig v State of South Australia (1995) 184 CLR 163 cited
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 cited

WAHR V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
W304 OF 2002

FRENCH J
9 JUNE 2003
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W304 OF 2002

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	WAHR APPELLANT
AND:	MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	9 JUNE 2003
WHERE MADE:	PERTH

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
WESTERN AUSTRALIA DISTRICT REGISTRY	W304 OF 2002

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	WAHR APPELLANT
AND:	MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	FRENCH J
DATE:	9 JUNE 2003
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The appellant is a Sri Lankan national who was born on 10 December 1980.  He arrived in Australia by air on 13 January 2002 and since that time has been held in immigration detention.  He applied for a protection visa on 23 January 2002.  That application was refused by a delegate of the Minister on 1 May 2002.  He lodged an application with the Refugee Review Tribunal (“the Tribunal”) for a review of the delegate's decision on 2 May 2002 and attended a hearing at the Tribunal on 13 June 2002.                He was represented by a migration agent, although that agent did not appear at the hearing. 

2. On 27 June 2002 the Tribunal affirmed the delegate's decision not to grant a protection visa to the appellant.  On 3 July 2002 the appellant applied to this Court for judicial review of the Tribunal's decision.  The stated ground of the application was:

   ‘I’m not satisfied on the decision made by the tribunal, as I am a young Tamil from Sri Lankan north part.’

   The application for review was remitted to the Federal Magistrates Court and on 9 October 2002 his Honour Raphael FM dismissed the application.  The appellant then filed a notice of appeal to this Court and by a direction of the Chief Justice given on 18 March 2003 the appeal was to be heard by a single judge. 

3. The substance of the appellant's claims in support of his application for a protection visa were conveniently set out in the written submission filed on his behalf before the Tribunal:

   ‘.         The applicant is a Hindu Tamil from Jaffna in Sri Lanka

   .The applicant left school at the age of sixteen, and was employed working on local land  to earn enough wages to survive.

   .With the unrest in 1995, the applicant's family fled Jaffna for various places, and the applicant has not seen his family since this time.  The applicant remained living in his local village. 

   .Whilst the applicant instructs that he was not involved with the LTTE, during his teenage years the applicant was required to deliver LTTE documents in his local area and the LTTE occasionally required the applicant to assist in digging bunkers.  The applicant was also asked to join the LTTE, but he refused.

   .In 1997 the applicant was working in the local study centre, serving newspapers and books and  maintaining the centre's building.  The applicant was detained by the Sri Lankan army during this time, and was accused of collaborating with the LTTE.  The applicant was subjected to horrendous torture during his period of detention.  The applicant was ultimately released from detention.

   .In 2000, the applicant was accused of (sic) by local informants of supporting the LTTE, and was again detained by the Sri Lankan army for a period of one and half months.  The applicant was again subjected to torture, and was taken to hospital when his wounds became infected.  After being returned from the hospital the applicant was beaten further.  The applicant instructs that he was ultimately released because he could not reveal any useful information.

   .Late in 2001, the applicant was again being sought when the Sri Lankan army began rounding up people in his area.  The applicant left his village and stayed with a friend of his father in Jaffna.  With the assistance of his father's friend, the applicant flew from Jaffna to Colombo where he departed Sri Lanka. 

   .The applicant fears that he will be tortured and possibly killed if he were forced to return to Sri Lanka because he is Tamil, and is suspected of being involved with the LTTE.  The applicant also fears that the LTTE will recruit him and force him to join in their fighting’ 

4. A lengthy submission was provided to the Tribunal by the appellant's advisers.  It contended that he faced persecution by reason of both his race and political opinion.  He said  that in Sri Lanka he was subjected to persecution as a Tamil and feared that he would be subjected to such persecution again if forced to return to Sri Lanka.  It was submitted that the reason for this feared persecution was his race, Tamil. The appellant also instructed that he feared persecution at the hands of the Sri Lankan authorities for reason of his perceived political opinion. 

5. The appellant asserted that while in Sri Lanka he had been persecuted by the Sri Lankan armed forces because of his suspected involvement with the Liberation Tigers of Tamil Eelam, LTTE.   He also claimed that he feared persecution at the hands of the LTTE who he said regularly recruited Tamil men to join in their fighting.  It was submitted that the reason for the appellant's feared persecution was the political opposition imputed to him by government, pro-government and anti-government forces in Sri Lanka.  The submission went on to address matters going to the credibility of his claims and took issue with the delegate’s conclusions in that respect.  It also referred to other decisions of the Tribunal relating to the situation of young Tamil men and particularly from the northern part of Sri Lanka. 

6. In refusing his application the Tribunal made a number of findings which are  summarised in the written submissions for the respondent: 

   ‘ The Tribunal:

   (a) did not accept the Appellant's claims to have been detained and tortured on the two occasions in 1997 and 2000;

   (b)found that he was not being sought by the authorities when he left Jaffna in 2001, referring in particular to the Appellant's ability to leave Sri Lanka by plane;

   (c)referred to the improvement in the situation in Sri Lanka, holding that while the Appellant in earlier times would have fallen into the profile of a person at risk on return, there was not now a real chance that the Appellant would be perceived as a terrorist or a threat to the state.  It found it was not satisfied that the Appellant faced a real chance of persecution either because the authorities had a specific interest in him, or because he was a Tamil who may have pro LTTE opinions imputed to him;

   (d) held the Applicant was not at risk for having sought asylum in Australia;

   (e)was satisfied that he was not at real risk of being forcibly recruited into the LTTE.’ 

7. In dealing with the appellant’s claims of detention and torture the Tribunal said:

   ‘The Tribunal does not accept that the Applicant was detained and tortured on the two occasions as he described.  That is not to say, however, that he had had no encounters with security personnel.  It is plausible, in light of the available information, that he was stopped and roughly handled for two brief periods.  The Tribunal finds that to be the case.  That is a fate that many Tamils have encountered, but the Tribunal is satisfied that the Applicant has embellished those incidents and that the sort of treatment he encountered was neither torture nor of such a serious nature as to amount to persecution for the purposes of section 91R of  the Act. The Tribunal finds that, if he was in fact detained on the two occasions referred to in his claims, he was released after brief interrogation on both occasions because the authorities were satisfied he had no connection with the LTTE.’   

   The Tribunal found that he had embellished the accounts of his encounters with the Sri Lankan authorities.  It went on to say:

   ‘Since he left Sri Lanka, there have been some significant changes that reduce the prospects of harm should he return…’

   and referred to extensive country information in that respect. 

8. The Tribunal considered the risk profile of the appellant if returned to Sri Lanka:

   ‘In earlier times, the Applicant may have fallen within a common profile of people at risk if they returned to Sri Lanka, namely, young Tamil males from the war zone, without Colombo connections, unable to communicate with Sinhalese security officials and rightly or wrongly suspected of links with the LTTE.  There is no doubt that the Sri Lankan government is still vigilant in seeking out people it perceives to be terrorists and that, if detained for any prolonged period, such people may encounter some serious harm.  However, there is not a real chance that the Applicant will be perceived to be a terrorist or any other threat to the state.  He was of no interest to Sri Lankan authorities when he left the country. Since that time, the situation has significantly improved, members of the LTTE can re-enter government- controlled areas and the scene is set for a continuing ceasefire and durable peace.  Unlike previous ceasefires, this one is conducted in the context of a US-led anti-terrorism campaign that has placed intense pressure on groups that are classified as “terrorist”, such as the LTTE.  So much can be partly inferred from the fact that the LTTE has entered a ceasefire agreement, led personally by Mr Prabhakaran.  There are several other differences.  There has been a change in government since the failed 1994 cease-fire; the international community has become involved, with Norway taking a leading role; security checkpoints have been dismantled and there is a good measure of freedom of movement within and between population centres; violence has been curbed and unarmed LTTE members are returning to government- controlled areas to participate in non‑violent political processes in the knowledge of the government.’

   The Tribunal also had regard to the ceasefire which had been implemented in Sri Lanka:

   ‘The ceasefire has held and various policies have been implemented to provide for its continuation.  In light of the available information, the Tribunal is satisfied that there is not a real chance that the Applicant faces a real chance of persecution in the reasonably foreseeable future, should he return to Sri Lanka, either because the authorities have a specific interest in him because it suspects he is connected with the LTTE, or because he is a Tamil who might be imputed with pro-LTTE political opinions.’

9. The Tribunal considered the possibility that the appellant might be at increased risk because he sought asylum in Australia.  It referred to country information considered by the delegate in that respect and then said:

   ‘The Applicant left Sri Lanka using his own passport.  He had been security-checked at that stage and was of no particular interest to Sri Lankan authorities.  He has not been involved in any LTTE activities in Australia and, even if the Sri Lankan authorities had monitored him, such monitoring would disclose that he has no links with the LTTE.  He may be questioned on return about the whereabouts of his passport, but the Tribunal is satisfied that he will only be questioned for a brief period, that he can adequately explain that he left the country legally and has no LTTE ties, and that he will be released without a real chance of encountering any persecution.’

10. In his decision dismissing the application for judicial review, the learned magistrate said he had read the Tribunal's decision and considered the submissions made by the appellant.  He could find nothing on the papers or in what he had heard from the appellant that would indicate that the Tribunal had prejudged any issues or entered upon its decision with a closed mind.  It referred to the three particular matters which the appellant had mentioned in his submissions.  The learned magistrate was unable to find that any grounds for review as currently permitted by the legislation and the decision of the Full Bench of the Federal Court existed and that he must dismiss the application.

11. His Honour was proceeding on the basis that he was bound by the Full Court decision in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449 to the effect that s 474 of the Migration Act 1958 (Cth) had so widened the powers of the Tribunal that, relevantly, only a failure to exercise its decision-making powers in a bona fide manner provided grounds for review. That is a somewhat oversimplified statement of the majority position in NAAV  but, in any event, that decision has been overtaken by the decision of the High Court in Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 195 ALR 24. The effect of that decision is that where an application is made for a constitutional writ or the issue of a writ under s 39B of the Judiciary Act 1903 (Cth) in the exercise of Federal Court jurisdiction, the available grounds extend to jurisdictional error. To assert jurisdictional error is to assert that there was no relevant privative clause decision protected by s 474. There is still some debate about the scope of relevant jurisdictional error. That is to say there is debate about whether jurisdictional error which avoids the application of s 474 is to be understood in the narrow sense or in the wider sense contemplated in Craig v State of South Australia (1995) 184 CLR 163. I am assuming for the sake of argument that jurisdictional error is to be understood in the wider sense in Craig's case and as discussed by the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1.

12. Having regard to the widest possible view of the available grounds for review within that general rubric, I am unable to discern any apparent error of law on the face of the Tribunal's reasons, nor has the appellant been able to point to any procedural unfairness in the way the Tribunal conducted its proceedings notwithstanding that his notice of appeal included a number of common form grounds, including an allegation of breach of procedural fairness which was unparticularised.  In the circumstances, there is no point in remitting the matter for further consideration by the magistrate in the light of S157.  There is, on the face of it, no reviewable error of law and the appeal must be dismissed.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:
Dated:            13 June 2003

Counsel for the Appellant:	The appellant appeared in person.
Counsel for the Respondent:	Mr JD Allanson
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	9 June 2003
Date of Judgment:	9 June 2003