WAIQ v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 785

FEDERAL COURT OF AUSTRALIA

WAIQ v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 785

Federal Court of Australia Act 1976 (Cth) s 25(1A)
Migration Act 1958 (Cth) ss 36(2)(a), 474

Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24

WAIQ V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
W348 of 2002

RD NICHOLSON J
22 JULY 2003
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W348 OF 2002

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	WAIQ APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	RD NICHOLSON J
DATE OF ORDER:	22 JULY 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	W348 OF 2002

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	WAIQ APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	RD NICHOLSON J
DATE:	22 JULY 2003
PLACE:	PERTH

REASONS FOR JUDGMENT

1. This is an appeal from a decision of Federal Magistrate Raphael given on 12 December 2002. The appellant’s application for an order of review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 26 August 2002 whereby it affirmed a decision of a delegate of the respondent not to grant to the appellant a protection visa. The Chief Justice, acting under s 25(1A) of the Federal Court of Australia Act 1976 (Cth), directed that the appeal be heard by a single judge.

2. The appellant is a national of Sri Lanka.  He arrived in Australia on 12 November 2001.  On 27 November 2001 he applied for a protection (class XA) visa.  On 18 June 2002 the delegate refused the application. 

3. The appellant’s claims under the Conventions relating to the Status of Refugees (as amended by the Refugee Protocol) were that he was forced to assist the Liberation Tigers of Tamil Eelam (‘the LTTE’) while his family were living in the Vanni area between 1995 and 1997.  After his family returned to the Jaffna Peninsula in September 1997, he claims he was detained by the Sri Lankan army on a number of occasions and subjected to mistreatment and torture. 

4. In its findings of fact the Tribunal accepted that the appellant was a Sri Lankan Tamil from the Jaffna Peninsula; that the Peninsula was under the control of the LTTE (between 1990 and 1995); while his family was living in the Vanni (between 1995 and 1997) the LTTE tried unsuccessfully to recruit the appellant; he was abducted and harassed many times but his parents secured his release by paying money to the LTTE; his elder brother joined the LTTE and was killed while fighting in Mullaitivu in 1999; the appellant was forced to assist the LTTE while his family was living in the Vanni between 1995 and 1997. 

5. However, the Tribunal did not accept that the appellant was arrested and detained by the Sri Lankan army after he and his family returned to the Jaffna Peninsula in September 1997 or that he was tortured or sexually harassed or that he was required to report to the army after his release or that he left the Jaffna Peninsula without the knowledge of the army.  It concluded the appellant was not of any interest to the Sri Lankan authorities at the time he left Sri Lanka. 

6. In reaching this view the Tribunal formed a very poor impression of the appellant’s credibility and did not accept him as a truthful witness.  That was based on discrepancies in the appellant’s account which caused the Tribunal to form a view that it was, in part, a fabrication, particularly the portions of the account concerning the occasions on which he claimed to have been detained by the Sri Lankan army after his family returned to the Jaffna Peninsula in September 1997.  These adverse findings of credibility were based on a problem of timing in the appellant’s account as well as his demeanour in dealing with it and his resort to hypothetical terms. 

7. The Tribunal also considered whether the appellant would have a well-founded fear of being persecuted for a Convention reason if he were to return to Sri Lanka.  Although all five Convention reasons had been considered by the Tribunal, it found no basis for that relating to religion.  The political opinion which it considered was an imputed political opinion in favour of the LTTE resulting from his elder brother’s involvement in that organisation and the fact that the appellant was a young Sri Lankan Tamil from the Jaffna Peninsula.  Having regard to the changes which had taken place in Sri Lanka since the appellant’s departure – specifically the change of government, the cease fire and the consequent easing of security - it did not accept that there could be a basis for a well-founded fear of persecution if he returned to Sri Lanka now or in the reasonably foreseeable future. 

8. The Tribunal also concluded that the Sri Lankan government would provide the appellant with the same degree of protection against forcible recruitment or other persecution by the LTTE as it would provide to any of its other nationals and with a degree of protection sufficient to remove a real chance of his being forcibly recruited or otherwise persecuted by the LTTE for a Convention reason if he returned home in the government controlled area of Sri Lanka now or in the reasonably foreseeable future. There was, therefore, no basis on which the appellant could satisfy the criterion set out in s 36(2)(a) of the Migration Act 1958 (Cth) (‘the Act’) for the grant of a protection visa.

9. When the matter came before the Federal Magistrate, three grounds of application were relied upon.  The first was that the Tribunal failed to take relevant consideration and made the decision unfairly and unreasonably.  The second was that the Tribunal did not believe the appellant’s statement and did not give him a chance to say what was in his statement.  Thirdly, it was said the Tribunal did not consider a few translation mistakes between English and Tamil. 

10. Those translation mistakes were examined by the Federal Magistrate.  It was accepted that there was evidence of the existence of a mistake.  However, the Tribunal’s reasons evinced that it was aware of the fact to which the mistake related.  Therefore, the Federal Magistrate was satisfied that the Tribunal was seized of his complaint concerning the mistranslation. 

11. Further, the Federal Magistrate was satisfied that the Tribunal met all of its obligations to provide the appellant with an opportunity to deal with matters of concern.  He referred to the s 424A letter written to the appellant on 23 July 2002.  In addition, the Tribunal dealt with other grounds relating both to the general position of Tamils in Sri Lanka and to the particular position of the appellant. 

12. Correctly, the Federal Magistrate was of the view that the Tribunal was influenced by its views of the appellant’s credibility.  These it perceived as arising out of the general problems of credibility in the stories when tested against the timing issues and the appellant’s unhelpful attempts to explain the discrepancies, a matter to which I have referred as being the basis in the Tribunal’s account of its reasons.  Based on this assessment of credibility and being unable to provide merits review such as the appellant had apparently urged before the Federal Magistrate, he dismissed the application. 

13. The grounds in the notice of appeal allege judicial error in ways none of which were supported.  This is only to be expected because the grounds were in technical language and the appellant was unrepresented. 

14. An additional ground of appeal was that the Federal Magistrate did not consider all of the appellant’s submissions to the Tribunal. 

15. In pressing these grounds orally the appellant complained that the lawyer did not interpret properly what he had instructed him in Tamil.  That is, he relied upon the translation errors which had been considered by the Federal Magistrate.  I accept the submission for the respondent that there was no obligation on the Federal Magistrate to revisit all submissions made before the Tribunal or to consider matters arising involving merits review (such as the reference to the effect of what had happened in relation to the appellant’s brother and the allegations of sexual assault). 

16. The Federal Magistrate’s decision was made before judgment in Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24. The decision of the Tribunal was a privative clause decision under s 474 of the Act. The effect of the decision in S157 is that s 474 will operate to preclude judicial review unless the decision of the Tribunal was affected by manifest jurisdictional error: see S157 at [76] – [78] and [83].

17. There are no matters raised by the appellant which could have supported before the Federal Magistrate or can now support a finding of the existence of manifest jurisdictional error in the way that the Tribunal dealt with the appellant’s application.  There was no failure to exercise jurisdiction and no excess of jurisdiction.  Further, the three so-called Hickman conditions for a valid exercise of power were satisfied.  Furthermore, there is nothing apparent from a reading of the papers which would support a view to the contrary even if it were not expressed by the appellant, as an unrepresented person. 

18. In the circumstances I accept the submission for the respondent that no case for allowance of the appeal has been made out.  The Federal Magistrate did not err in his conclusion and accordingly the appeal should be dismissed.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson.

Associate:

Dated:             29 July 2003

The Appellant represented himself
Counsel for the Respondent:	Ms LB Price
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	22 July 2003
Date of Judgment:	22 July 2003