WAJJ v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 924

FEDERAL COURT OF AUSTRALIA

WAJJ v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 924

Migration Act 1958 (Cth) ss 48B, 417

Muin v Refugee Review Tribunal & Liev Refugee Review Tribunal (2002) 190 ALR 601 referred to

WAJJ V MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
W168 of 2003

RD NICHOLSON J
14 JULY 2004
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W168 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	WAJJ APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	RD NICHOLSON J
DATE OF ORDER:	14 JULY 2004
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	W168 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	RD NICHOLSON J
DATE:	14 JULY 2004
PLACE:	PERTH

REASONS FOR JUDGMENT

1. These are the reasons for a decision made yesterday that the appeal should be dismissed.

2. The appellant brings an appeal from a decision of Federal Magistrate Driver given on 11 July 2003.  In that decision his Honour dismissed an application by the appellant for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 16 January 2003.  In that decision the Tribunal affirmed the decision of a delegate of the respondent not to grant to the appellant a protection (class XA) visa. 

3. The principal claims and evidence of the appellant before the Tribunal were set out in the respondent’s submissions before the Federal Magistrate and were adopted by him.  They read as follows:

   ‘The principal claims and evidence of the applicant were:

   a)The applicant is a Sinhalese Buddhist from Negombo in Sri Lanka, whose most recent employment was as a driver.

   b)The applicant was a supporter of the UNP and became a member in 1995.  He was a strong supporter of the former Minister of Fisheries in the UNP government, Mr Perera.

   c)The People’s Alliance Party (PA), which holds the presidency, has become angry with UNP supporters and the party in power has been beating up and killing people who don’t support them.

   d)After 1995 the applicant worked for the UNP by driving their vehicles.  The applicant drove a vehicle with a loud speaker to announce campaign meetings in advance of the 1997, 1998, 1999 and 2001 elections.  He also transported people in UNP vehicles to processions, meetings or to vote.

   e)Prior to and during the October 2000 elections there were fights between the UNP and the PA.

   f)On 19 July 2001 the applicant attempted, with other people, to attend a rally in Colombo, despite a warning by the PA not to do so.  The applicant did not get to the rally because there was unrest and people were being beaten by the PA and police. 

   g)Prior to 19 July 2001 the applicant had been to 10-15 meetings for the UNP but had no problems personally.  He had some political problems but not serious ones. 

   h)The majority of people in his village were supporters of the PA and [they] had been watching the applicant and giving him trouble.

   i)After his attempt to attend the rally on 19 July 2001 the applicant returned home.  Two days later he heard that supporters of the PA member of parliament Mr Jayaraja Fernando Pulle were looking to harm the applicant.

   j)The applicant’s former migration agent sent to the RRT a letter from Mr Perera dated 5 October 2002 which stated the applicant was well known to him and due to political harassment from 1995 to July 2001 he left Sri Lanka because his life was in danger.

   k)The supporters of Mr Pulle were focussing on the applicant because the PA thought he was a ring leader because of his previous support for the UNP.

   l)The applicant did not trust the police to combat political violence because they were subject to instruction from members of parliament.’

4. The findings and reasons of the Tribunal were summarised in the same submissions and were likewise adopted by his Honour.  I find them to be accurate.  They read as follows:

   ‘The principal findings of the Tribunal RRT:

   a)The RRT was satisfied the applicant was a Sri Lankan national.

   b)Due to discrepancies in the applicant’s evidence, the RRT was not satisfied he had worked as a driver in recent years.

   c)Although this finding cast doubt on the applicant’s claims to have helped the UNP since 1995 by driving its vehicles, the RRT was prepared to accept the applicant had helped the UNP in this way.

   d)The RRT did not accept the applicant’s late claim to have used his own vehicle to announce UNP election campaign meetings.  The RRT found that if this was the true level of his involvement he would have mentioned it earlier in his dealings with the Department and the RRT.

   e)The RRT accepted the applicant is a UNP supporter and has attended UNP election campaign meetings.

   f)The RRT did not accept the applicant had experienced harm as a result of these activities.

   g)The RRT accepted the preponderance of the applicant’s evidence which was that he had no problems in the period 1995 to 2001.

   h)The RRT did not accept the applicant attempted to attend the rally on 19 July 2001.  The applicant was unable to supply a straightforward answer as to how he found out about the rally and his evidence about the purpose of the rally and the colours worn and carried by UNP supporters contradicted country information.

   i)Accordingly the RRT did not accept the applicant was targeted after the rally by PA supporters or anyone else.  In any event the applicant’s account of this was not persuasive.  The applicant’s attempted level of involvement in the rally was not of sufficient interest to be reported to a PA politician who would then sent out thugs to target him.  There was also no firm basis for the applicant’s supposed knowledge that he was targeted. 

   j)The RRT did not accept UNP members or supporters face a real chance of persecution in Sri Lanka.  The UNP is not a persecuted group.

   k)The RRT did not accept the Sri Lankan state condones or is unable to control political violence.  The fact that police are in theory controlled by the President does not mean in practice there is an impunity for PA acts of political violence. 

   l)The RRT gave little weight to the letter from Mr Perera which was general in its terms.  The author did not provide any information about the extent to which he purported to be an authoritative witness to the events claimed and the statement that the applicant was harassed from 1995 to 2001 did not accord with the facts on most of the applicant’s own evidence.  Information from DFAT was that letters of endorsement are readily obtainable in Sri Lanka even where the authors have no reason to believe the contents to be true.

   m)The RRT was not satisfied the applicant has a well founded fear of persecution in Sri Lanka for reasons of a political opinion or any other Convention reason.

   The RRT therefore concluded that the applicant was not a person to whom Australia owed protection obligations under  the Refugees Convention and therefore did not satisfy the criterion set out in s. 36(2) of the Act for a protection visa.’

5. It is convenient to set out the reasoning of his Honour where it is relevant to the determination of each ground of appeal. 

6. The first ground of appeal is that the decision involved an error of law being an error involving incorrect interpretation of the term ‘well-founded fear’ because the Tribunal failed to consider persecution in the ‘near foreseeable future’.  In its reasons, when outlining the law, the Tribunal referred to the need to assess the claim ‘upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future’.  I agree with the submission for the respondent that examination of the subsequent reasons of the Tribunal does not indicate that the Tribunal acted contrary to this statement of the law, which accurately set out the position. 

7. The second ground of appeal is that the Tribunal failed to apply the correct test and principles of relevant law; that it fell into error in taking into consideration irrelevant matters; and that it failed to take into account relevant matters.  The ground is entirely unparticularised. 

8. It is not the case that the Tribunal failed to apply the correct law.  Examination of its reasons shows that it appropriately set out and relied on the applicable legislation and relevant High Court authorities. 

9. Nor is any case established that the Tribunal failed to take into account relevant considerations or took into account irrelevant considerations.  These matters were addressed in the second ground before his Honour and nothing is made out to show that his conclusion was in error of law.

10. The third ground of appeal was the third ground before his Honour.  It is to the effect that the Tribunal wrongly understood most of the claims and rejected them for reasons which are unreasonable, irrational, illogical, lacking proportionality, based on no evidence, uncertain and the product of bad faith, and that there was a failure by the Tribunal to comply with statutory rules.  This ground was rejected in the reasons of the Federal Magistrate and no error has been shown in his reasoning. 

11. The fourth ground of appeal is that the Tribunal denied procedural fairness according to the decision of the High Court in Muin v Refugee Review Tribunal & Liev Refugee Review Tribunal (2002) 190 ALR 601. This ground was also rejected by his Honour where he distinguished the facts which were before the High Court from the facts in the present case. Nothing is shown to establish that his conclusion was in error of law.

12. The fifth ground of appeal is that jurisdictional error affected the decision of the Tribunal.  This is merely an assertion of the conclusion which the appellant seeks. 

    ENDANGERMENT FROM GIVING EVIDENCE

13. At the hearing the appellant confined his submissions to the following matter.  He asserted that he had given evidence to the Australian Federal Police upon an undertaking that his evidence would remain confidential.  The evidence related to the identity of the captain, the mechanic and the crew on the boat which brought him and others to Australia.  He had been cross-examined on this evidence in a court in front of the accused persons.  As a consequence it had become known to the agent in Sri Lanka who was associated with the boat.  The appellant’s view was that if he returned to his village he would be killed by the agent and others who lived in that village.  The appellant also asserted that he could not rely on the Sri Lankan authorities to offer him protection.

14. He stated that as a consequence of his fears he had asked the Manager at his place of detention to isolate him from other Sri Lankans, which had occurred.

15. The matter to which the appellant referred in this way was addressed by the Federal Magistrate in the following paragraphs of his reasons:

    ‘8.The letter generally deals with the applicant’s fear of persecution should he return to Sri Lanka.  There is nothing in the letter which bears upon a consideration of the validity of the RRT decision.  A particular matter raised in the letter is that the applicant says that he gave evidence against the crew of the boat which brought him to Australia.  The applicant says that he was interviewed by the Federal Police apparently for the purposes of a prosecution of the crew.  He says that the Federal Police assured him that the statement he made would be kept confidential.

    9.The applicants says that his evidence was received by a Western Australian court.  The applicant says that the court accepted the truth of what he said.  The applicant contrasts that with the adverse findings on credibility made by the RRT.  I do not have before me the decision and reasons of the Western Australian court.  However, on the basis that that court was dealing with a criminal prosecution of people smugglers the issues before that court were different from the issues before the RRT.

    10.It would follow that the evidence given by the applicant to the State court would have probably related to the circumstances in which he was brought to Australia.  The possibility that the applicant was accepted as truthful by a criminal court in Western Australia does not create any implication that the RRT was wrong in making adverse findings on credibility for the purposes of considering the protection visa application.

    11.The applicant also told me that the information he gave to the police has found its way to Sri Lanka and that this creates a risk for him should he return there.  It does not appear that that risk formed part of the applicant’s protection visa claims that were considered by the RRT.  I think it likely that the circumstances giving rise to that risk arose after the proceedings before the RRT.  The applicant should point out these new circumstances to the Immigration Department so that they can be taken into consideration.  I do not rule out the possibility that, as a result of the applicant giving evidence against people smugglers in a criminal prosecution in Australia, information has found its way back to Sri Lanka that could cause harm to the applicant.  If he were so minded, the Minister could take that risk into account in considering whether to substitute a more favourable decision for that of the RRT.’

16. The letter to which the appellant referred to before the Federal Magistrate was a letter he had written to the Legal Aid office in Western Australia on 8 March 2003.  That was a date which postdated the decision of the Tribunal. 

17. The appellant was represented before the Tribunal.  The written submissions made on his behalf to the Tribunal appear in the appeal book.  They do not address the issue which was raised by the letter of 8 March 2003.  From the description of the hearing given in the reasons of the Tribunal there is further confirmation that the issue was not raised for the consideration of the Tribunal. 

18. It is apparent that the issue raised in the letter of 8 March 2003 cannot establish a jurisdictional error in the decision of the Tribunal.  The issue there raised was not an issue before the Tribunal and played no part in its reasoning.

19. Nevertheless, the issue raised is an important one if the facts as asserted by the appellant are established.  Whether or not those circumstances would establish a Convention reason or persecution in accordance with the Refugees Convention and Protocol is not a matter which can now be commented upon in the absence of proper factual findings. 

20. However, it was accepted for the respondent on the hearing of the appeal that the appellant is not precluded from writing to the respondent’s office requesting that she make a more favourable decision in exercise of her powers under s 417 of the Migration Act 1958 (Cth) or that she exercise her discretion to enable the appellant to bring a further application based on these new circumstances in accordance with the respondent’s discretion arising under s 48B of the Act.

21. At the hearing of the appeal I said that these reasons would draw attention to this issue and that the appellant may choose to attach them to any such application in order that the circumstances of it would be made apparent to whomever it falls to consider the issue. 

    CONCLUSION

22. In order to succeed in his appeal the appellant is required to make out an error of law in the reasoning of the Tribunal and hence an error of law in the reasoning of the Federal Magistrate.  No such case has been established.  Accordingly the appeal was dismissed with costs. 

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson.

Associate:

Dated:             15 July 2004

The Appellant represented himself.
Counsel for the Respondent:	Mr RT Ritter
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	14 July 2004
Date of Judgment:	14 July 2004