NALM v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia (Full Court)|2004-02-12|Before: Tamberlin JJ

INTRODUCTION 1 The appellant appeals from a judgment of a judge of the Court given on 10 October 2003, dismissing his application to the Court and ordering him to pay the respondent's costs. 2 The application was made under s 39B of the Judiciary Act 1903 (Cth) for orders in the nature of certiorari, prohibition and mandamus directed to the Refugee Review Tribunal ('RRT'). Those orders were sought in respect of a decision of the RRT dated 3 January 2003 and handed down on 19 February 2003, affirming a decision of a delegate of the respondent not to grant a Protection visa to the appellant.

BACKGROUND 3 The appellant is a citizen of Sri Lanka. He is a Tamil originally from the Jaffna Peninsula, aged in his 20s. 4 The appellant arrived in Australia on a student visa in November 2001. On 19 December 2001 he lodged an application for a Protection visa. That application was accompanied by a lengthy and detailed typed statement recounting the alleged course of persecution of the appellant in Sri Lanka. 5 The primary judge described the appellant's claim as a claim to fear persecution on the grounds of his Tamil ethnicity, his Hindu religion, his membership of a particular social group, namely, young male Tamils, and his actual or imputed political opinion (support for the political objectives of the Liberation Tigers of Tamil Eelam ('LTTE')). The alleged persecutors were the Sri Lankan Army and the Sri Lankan Police. 6 A delegate of the respondent ('the Delegate' and 'the Minister' respectively) refused to grant the appellant a Protection visa on 6 May 2002. On 10 May 2002, the appellant lodged with the RRT an application for review of the Delegate's decision. 7 In his dealings with the Delegate and with the RRT, the appellant was advised by solicitors who made written submissions and forwarded documents on his behalf. 8 The RRT conducted a hearing on 21 October 2002, when the appellant was assisted by a Tamil language interpreter and by a solicitor.

THE PROCEEDING BEFORE THE RRT 9 The RRT had to grapple with voluminous material and its reasons were lengthy. At the request of the primary judge, counsel for the Minister prepared an eight paragraph summary of the appellant's claims and findings, with supporting Court Book references. His Honour annexed a copy to his reasons for judgment. The following are those eight paragraphs, omitting Court Book references: '1. The appellant claimed that his family were displaced from Jaffna in 1987, lived in a refugee camp in 1988, moved to Batticaloa in 1989, and were caught up in fighting between the LTTE and government forces in April 1990. The appellant claimed to have been interrogated and assaulted by a government officer in 1991, and that he and his family went to Colombo in December 1991. These claims were accepted by the Tribunal. 2. The appellant also claimed that in 1991 his elder brother joined the LTTE. The Tribunal did not accept this as it was inconsistent with the information given by the appellant in connection with his student visa application on 18 September 2000 (as put by the Tribunal to the appellant in the s 424A letter [a reference to a letter dated 19 September 2002 from the RRT to the appellant pursuant to s 424A of the Migration Act 1958 (Cth)]). 3. The appellant claimed that in 1993 he visited his grandfather in Batticaloa and was mistreated by a member of the PLOTE [a reference to the People's Liberation Organisation of Tamil Eelam]. The Tribunal accepted this claim. 4. The appellant claimed that he, his mother and elder sister returned to Jaffna in March/April 1995, that he had to flee from a government offensive, was detained and mistreated both by the LTTE and by government forces, and eventually returned to Colombo in December 1995. The Tribunal did not accept this claim as it was inconsistent with the information and documentation submitted by the appellant in his student visa application (and put to him in the s 424A letter) that in 1995 he had been living in Colombo, attending Colombo Hindu College, had joined St John Ambulance Brigade Wellawatte City Corps in August 1995 and had completed the Association of Book Keepers Diploma in September 1995. The appellant claimed that he had made false statements in his student visa application to come to Australia, and submitted further alleged documents from the St Johns Ambulance Brigade and the Association of Book Keepers qualifying the dates earlier given for the appellant's presence in Colombo in 1995. The Tribunal considered these new documents and the appellant's explanation at length, but considered that the new documents had been fabricated and rejected the appellant's explanation for the inconsistencies in his dates of living in Colombo in 1995. Ultimately the Tribunal accepted the information in the student visa application that the appellant had been living in Colombo throughout 1995, and so rejected the appellant's claims to have travelled to Jaffna in April/May 1995, to have been mistreated, and not to have returned to Colombo until December 1995. The Tribunal rejected as fabricated further documentation submitted by the appellant suggesting that he was in Jaffna in 1995. 5. The appellant claimed that on 23 July 1999 he was detained and sexually mistreated by police in Colombo for two or three weeks. The appellant claimed he was admitted to hospital upon his release, and procured a passport on 7 September 1999. The Tribunal noted that this claim was inconsistent with information contained in the appellant's student visa application (and put to the appellant in the s 424A letter) that the appellant was studying at the British Business College from 12 July 1999 to 1 March 2000, had made bank withdrawals on 5 and 16 August 1999 and had never been admitted to hospital. Ultimately the Tribunal rejected the appellant's claim to have been detained and assaulted in 1999 as inconsistent with the information contained in his student visa application and also inconsistent with the appellant's lack of use of his passport to leave Sri Lanka until his March 2001 visit to India. The Tribunal concluded that this claim was fabricated. 6. The appellant claimed that upon returning from India on 10 April 2001 he was detained and sexually mistreated by the same police officer who had done so in 1999. The Tribunal did not accept this claim as it did not accept the 1999 claim and also because it appeared inconsistent with the appellant's ability to depart Sri Lanka legally using his own passport in March and November 2001. The Tribunal concluded that this claim was fabricated. 7. The appellant claimed that the police visited the appellant's home until his departure from Sri Lanka on 5 November 2001, and submitted a letter allegedly from a lawyer confirming this and stating that the appellant's life was in danger in Sri Lanka. The Tribunal rejected these claims given the appellant's ability to leave Sri Lanka on his own passport, and found the claim (and the lawyer's letter) were fabricated 8. The Tribunal also rejected a submission that the medical evidence presented by the appellant corroborated his claims. The Tribunal noted various inconsistencies in the medical histories given by the appellant at different times. Ultimately the Tribunal accepted that the appellant has a stammer and that it became more pronounced after his arrest in 1991, and that he suffered from anxiety and post traumatic stress disorder. The Tribunal however did not accept that those symptoms corroborated the appellant's claim to have been detained and mistreated in 1995, 1999 and 2001.' 10 The RRT: (a) disbelieved the appellant's account of recent detentions, mistreatment and police interest in him; (b) did not accept either his asserted link with the LTTE or his claim that the LTTE would single him out if he were to return to Sri Lanka; (c) did not accept that he would face difficulties in Sri Lanka by reason of being a failed asylum seeker; and (d) in the light of evidence concerning the peace process between the Sri Lankan Government and the LTTE, did not accept that he was likely to face persecution by reason of, inter alia, being a Tamil male from the north or east of the country. 11 For the above reasons the RRT was not satisfied that the appellant faced a real chance of persecution for a Convention reason if he were to return to Sri Lanka.

THE PROCEEDING BEFORE THE PRIMARY JUDGE 12 The primary judge identified nine issues raised by the appellant. These were as follows: (1) 'Whether the RRT considered the Applicant's claim to have a well-founded fear of persecution as a Tamil youth' (2) 'Whether the RRT considered the Applicant's claim that he had a well-founded fear of persecution in Sri Lanka as a failed asylum seeker in Australia' (3) 'Whether the Applicant's claim ought to have succeeded on the ground that other Tamil youths from Jaffna have been awarded refugee status' (4) 'Whether the RRT failed to have regard to its own finding that the Applicant was suffering from anxiety and post-traumatic stress' (5) 'Whether the RRT was required to take into account the fragility of the peace negotiations' (6) 'Whether any error of law was demonstrated in the RRT's approach to the Applicant's attempt to "relocate" to India' (7) 'Whether the RRT should have asked itself the question "what if I am wrong?"' (8) 'Whether the RRT failed to act "judicially"' (9) 'Whether there was inconsistency between the Applicant's answer to Question 32 in the protection visa application and his evidence before the RRT' 13 Issues (1) and (2) concern an alleged failure of the RRT to consider claims. His Honour held that the RRT had considered them. 14 Issues (4) and (5) concern an alleged failure of the RRT to have regard to relevant considerations. His Honour held that it had had regard to them. 15 Issues (6) and (7) concerned alleged errors of law. His Honour held that they did not arise on a correct understanding of the RRT's reasons. 16 In relation to issue (3), his Honour rejected a submission that the appellant should succeed on the ground that other Tamil youths from Jaffna had been recognised as refugees. 17 As to issue (8), his Honour did not accept that actual bias was established on the part of the RRT or that the RRT had acted illogically or unreasonably. 18 Finally, in relation to issue (9), his Honour accepted that the RRT had been wrong to describe one aspect of the appellant's evidence as involving clear inconsistency (although he said a qualification was required), but did not consider that this had contributed to the result adverse to him.

REASONING ON THE APPEAL 19 The notice of appeal filed to commence the appeal asserted: · that his Honour 'erred in law in finding that the RRT did consider [the appellant's] claims properly'; · that the RRT did not consider the appellant's case properly; · that the RRT refused to grant the protection visa 'because of some inconsistency'; and · that his Honour erred in law in concluding that the RRT had considered the appellant's claims to have a well-founded fear of persecution: (a) 'as a Tamil youth from [the] north-east [of Sri Lanka]'; (b) 'in Sri Lanka as a failed asylum seeker in Australia'. 20 The appellant had not provided written submissions when the appeal came on for hearing on 10 February 2004. On that occasion, the appellant: (a) sought an adjournment because he was feeling ill; (b) sought leave to file in Court an amended notice of appeal; and (c) said that he had written submissions but had left them at home. 21 We gave leave to the appellant to file an amended notice of appeal in Court, adjourned the hearing to today, 12 February 2004 at 2.15 pm, and directed the appellant to file and serve his written submissions by midday on 11 February 2004. 22 This morning, the appellant faxed to the Court a letter which, omitting formal parts, was as follows: 'I [NALM] No N1711 of 2003, am very sick/ill and while thanking for early adjournment on 10th I am afraid I would not be able to attend the court on 12th 2.30 pm, and I would like to request you to kindly consider my situation and postpone the (adjournment) hearing for some time. I should be in the court while hearing because to explain and give details to your honour. ……………. I am annexing herewith a medical certificate as well.' The material parts of the medical certificate were as follows: 'Western Sydney HEALTH Area Health Service Sickness Certificate To whom it may concern This is to certify that I examined [NALM] Medical Record No 421779 as an outpatient on 12/02/04 ü I consider the patient likely to be able to resume normal occupational duties on 13/02/04. q I consider the patient will require further assessment on 13/02/04 by LMO

With the patient's consent the diagnosis is medical condition. Doctor's signature [signed] Date 12/02/04 Doctor's name (print)W. Chan' 23 The Minister opposes the application for an adjournment. 24 The medical certificate does not identify the 'medical condition' or explain why it would prevent the appellant from participating effectively in a hearing of his appeal today. As noted below, he has provided written submissions. 25 In all the circumstances, we are not persuaded that a further adjournment should be granted. 26 The hearing of the appeal will proceed: see O 52 r 38A(1)(d) of the Federal Court Rules. 27 The amended notice of appeal is as follows: 'The Federal Court (single judge) erred in law in finding that the RRT did consider my (Applicant's) claims properly. The RRT ignored some of my claims and relevant material, and misunderstood an important finding of fact. The Court erred in the following findings attached herewith. (See attachment) Attachment 1. Applicant's (my) claim to have a well founded fear of persecution as a Tamil Youth. 2. RRT's consideration about the fear of persecution in Sri Lanka as a failed asylum seeker. 3. Possibility of success on the ground that other Tamil youths from Jaffna have been awarded refugee status and the applicant's personal persecuted circumstances. 4. RRT's findings about applicants suffer from anxiety and post-traumatic stress and related incidents. 5. RRT's requirement to consider the fragility of the peach negotiations and definition of reasonable foreseeable future. 6. RRT's approach to the applicant's attempt to relocate to India and other attempt to escape from the country and explanations. 7. Whether the RRT should have asked itself the question "what if I am wrong"? 8. Whether the RRT failed to act judicially and its approach to the case was open minded. 9. Inconsistency and misunderstanding between the applicant's answers in student and protection visa applications form questions and the claim in written and oral statements.' 28 The appellant has provided written submissions, albeit later than midday on 11 February 2004. 29 Grounds 1 and 2 of the amended notice of appeal repeat, in substance, grounds (a) and (b) noted in [19] above.

Ground 1 30 The RRT accepted that the appellant would be identified as coming from Jaffna and expressly noted a submission that, being recognised as such, he faced a risk of being arrested and mistreated for suspected involvement with the LTTE. But after considering the progress of the peace process and the relaxation of security in Sri Lanka, the RRT concluded as follows: 'Having regard to all of the evidence before me I do not accept that, if the Applicant returns to his home in Colombo now or in the reasonably foreseeable future, there is a real chance that he will be arrested and tortured or sexually assaulted or otherwise persecuted by the Sri Lankan authorities by reason of his race or nationality (Tamil), his religion (Hindu), his membership of any particular social group for the purposes of the Convention such as Northern or Jaffna Tamils or Tamil males from the North, his actual political opinion or any political opinion imputed to him (support for the LTTE). For reasons given above I likewise do not accept that there is a real chance that the Applicant will be persecuted for a Convention reason by the LTTE.' (our emphasis) 31 The reference in the passage to 'Northern or Jaffna Tamils, or Tamil males from the North' indicates that in substance the RRT did consider the present claim.

Ground 2 32 The RRT also expressly noted the appellant's submission in relation to problems faced by some failed asylum seekers returning to Colombo. However, it did not consider that the appellant would face those difficulties, because, unlike those persons, the appellant left Sri Lanka legally, and on his own passport which could be used for identification purposes. Similarly, he would be able to return to Sri Lanka like any other traveller.

Ground 3 33 The fact that some other Tamil youths from Jaffna may have been granted protection visas is irrelevant to the question whether this particular appellant has a well-founded fear of persecution.

Ground 4 34 The RRT accepted that the appellant's stammer became worse after he was arrested by the Police and the Army in 1991; that the events of 1991 were traumatic for the appellant; and that the appellant was suffering from anxiety and post-traumatic stress disorder symptoms. But the RRT did not accept that these circumstances corroborated the appellant's claims to have suffered torture and trauma at the hands of the Sri Lankan Armed Forces and Police in 1995, 1999 and 2001. The RRT did not commit any appealable error in this respect.

Ground 5 35 In his written submissions, the appellant refers to the Arab-Israeli peace process and submits, by reference to it, in effect, that the RRT should have disregarded, or heavily discounted, the evidence of the ceasefire agreement and peace process as between the Sri Lankan Government and the LTTE dating from September 2002. The RRT noted, and addressed at some length, the appellant's submission that 'no one could guarantee how long the peace process would last'. The RRT accepted that no one could, and indeed that breaches of the agreement were 'inevitable', but did not think that this fact suggested that there was a real chance that the appellant would be persecuted if he were to return to Colombo (such breaches as had occurred had occurred in the North and East of Sri Lanka, not in Colombo).

Ground 6 36 In March 2001, the appellant travelled to India and in April 2001 he returned to Sri Lanka, where he remained for some seven months before departing for Australia in November 2001. The RRT inferred that the appellant did not have a well-founded fear of persecution in Sri Lanka. It noted the appellant's explanation of his failure to remain in India but did not find it persuasive. This was a matter for the RRT. No error of law is exposed.

Ground 7 37 7. The appellant submits that the RRT must have had some doubt about its not being satisfied that the incidents of 1995, 1999 and 2001 did not occur, otherwise it would not have gone on to refer to the peace process. According to the appellant's submission, it follows that the RRT was bound to put to itself the question 'What if I am wrong?'. 38 We do not accept that the RRT's reference to the peace process demonstrates that it had the doubts mentioned. We do not accept that the giving of several reasons by a decision maker necessarily shows doubt as to the correctness of each.

Ground 8 39 There is no reason to think that the RRT was not 'open minded'.

Ground 9 40 The primary judge accepted the appellant's submission that there was not a 'clear inconsistency', adding that the appellant's answer to Question 32 required qualification. His Honour was correct in concluding that the supposed inconsistency did not contribute to the outcome before the RRT.

CONCLUSION 41 No error is demonstrated in the reasoning of the primary judge. 42 The appeal should be dismissed with costs.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

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