FEDERAL COURT OF AUSTRALIA Lawson v Minister for Immigration & Multicultural Affairs [2001] FCA 351 IMMIGRATION LAW – protection visa - review of a decision of the Refugee Review Tribunal –- whether the Tribunal relied on mistaken finding of fact – whether the Tribunal ignored evidence of the applicant's medical condition – whether the Tribunal misapplied the 'well- founded fear of persecution' test – whether the Tribunal failed to set out its findings of fact – whether the Tribunal failed to conduct a fresh review of the application – whether the Tribunal failed to give 'proper, genuine and realistic consideration' to the applicant's claim Migration Act 1958 (Cth) ss 427(1), 476(1) Paramanthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 referred to Re Minister for Immigration and Multicultural Affairs; Ex parte Cassim [2000] HCA 50, (2000) 175 ALR 209 followed Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845,(2000) 98 FCR 946 applied Anthonypillai v Minister for Immigration and Multicultural Affairs [2000] FCA 1368 cited Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 referred to EKOW LAWSON v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V 474 OF 2000 MARSHALL J MELBOURNE 7 MARCH 2001 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 474 OF 2000 BETWEEN: EKOW LAWSON APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: MARSHALL J DATE OF ORDER: 7 MARCH 2001 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs, including the reserved costs, if any. 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 474 OF 2000 BETWEEN: EKOW LAWSON APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: MARSHALL J DATE: 7 MARCH 2001 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 On 30 June 2000 the applicant, Mr Ekow Lawson, made application for an order of review under Part VIII of the Migration Act 1958 (Cth) ("the Act"), in respect of a decision of the Refugee Review Tribunal ("RRT") of 26 May 2000. The RRT Decision 2 Mr Lawson applied to the RRT to review a decision of the respondent's delegate to refuse him a protection visa. 3 Mr Lawson claimed that he was a citizen of Sierra Leone. He claimed to have worked at Kiss FM, an alleged Radio station in Bo, a town in central Sierra Leone. He alleged that he fled from Sierra Leone after a series of violent incidents perpetrated by rebels, which resulted in him fearing for his personal safety. He claimed that he had arrived in Australia as a stowaway on the ship "California Orion" on 6 December 1998. 4 The only claims made by Mr Lawson upon which he relied to secure a protection visa were by reference to Sierra Leone. However, the RRT was not satisfied that Mr Lawson was a citizen of Sierra Leone. At page 17 of its decision under the heading "Findings and Reasons" the RRT said that: "The Applicant states that he is a citizen of Sierra Leone, but has no papers or other evidence to support this claim. The only evidence of the Applicant's identity is in the form of an identity card saying that he worked for Kiss-FM, which a document examiner consulted by the Department says "should not be relied upon for the purpose of identification." For the reasons which follow, the tribunal is not satisfied the Applicant's account of his circumstance is correct. The tribunal is not, therefore, satisfied that the Applicant is a citizen of Sierra Leone. As I cannot be satisfied that Sierra Leone is his country of reference, and he has made no claims about any other country, it follows I cannot be satisfied that he has a well-founded fear of persecution within the meaning of the Convention." 5 It appears that the RRT was reinforced in its lack of satisfaction as to Mr Lawson's country of origin by its view of his unreliability as a witness of the truth. At page 17 of its decision the RRT noted that: "[T]he Applicant's account of events has changed in several key respects, and several elements are internally inconsistent or at odds with independently-sourced information. Because of this, the tribunal is not satisfied the Applicant's claims are true." 6 Consequently, the RRT affirmed the Minister's decision to refuse Mr Lawson a protection visa. The Applicant's Submissions before the Court 7 Mr Justin Castelan generously gave up his time to appear as pro bono counsel for Mr Lawson pursuant to the Court's pro bono scheme. Mr Castelan's submissions appear to focus on six basic propositions. They are as follows: i. the RRT relied on a mistaken finding of fact concerning the applicant's evidence on the movements of the vessel "California Orion"; ii. the RRT ignored evidence concerning Mr Lawson's medical condition (ie. trauma induced stress); iii. the RRT misapplied the "well-founded fear of persecution" test; iv. the RRT failed to set out its findings on several material questions of fact; v. the RRT failed to conduct a fresh review of the application after the delegate's decision; and vi. the RRT failed to give proper, genuine and realistic consideration to the merits of the applicant's case. 8 I am satisfied that none of the propositions referred to above are established. I will deal with each of these propositions in turn. i. Reliance on a Mistaken Finding of Fact 9 The RRT found on the basis of new information before it, not being information that was before the delegate, that "California Orion" arrived in the Port of Melbourne on 7 December 1998 at 2.00 am and departed the port at 10.50 pm on 8 December 1998. Mr Lawson told the RRT that he disembarked on 6 December 1998 when "it was just getting dark". Mr Lawson also claimed that he boarded the vessel in Oman on 8 November 1998, whereas independent information given to the RRT revealed that the ship left Oman on 7 November 1998. At p 19 of its decision the RRT said that: "[Mr Lawson's] account of his alleged travel on California Orion is inconsistent with the record of that ship's movements." 10 Mr Castelan submitted that the RRT erred in a way which was reviewable pursuant to s476(1)(g) of the Act by relying on a mistaken finding of fact, the relevant mistake being reliance on a fact which did not exist. The fact which was alleged not to exist was the finding that Mr Lawson's claims regarding his travel on the vessel were inconsistent with independent records of the ship's movements. However, as demonstrated above, the RRT accurately noted the discrepancy in the timing of Mr Lawson's alleged embarkation and disembarkation, when compared to the independent records supplied to the RRT. It follows that there is no substance to this ground of attack on the RRT's decision. 11 In any event, the RRT's finding in this regard was not critical to the making of its decision. The RRT held at page 19 of its decision that such inconsistencies were "peripheral to the central elements of the applicant's claims". The inconsistencies were in no sense of "fundamental importance" to the issue of Mr Lawsons's credibility. Rather, they were factors which, taken together with other factors, showed that Mr Lawson's account of the relevant matters was suspect. The discrepancies in evidence were in this sense confirmatory of the RRT's ultimate finding that it was not satisfied that Mr Lawson was a citizen of Sierra Leone. ii. Evidence concerning Mr Lawson's Medical Condition 12 The RRT had before it psychological reports referrable to Mr Lawson, together with a letter from a doctor at the North Richmond Community Health Care Inc. That evidence suggested that Mr Lawson was suffering from post-traumatic stress disorder. It was submitted that in refugee cases where there is medical evidence that an applicant has been suffering from post-traumatic stress disorder the Tribunal is under a duty to seek verification of the applicant's medical condition. 13 There was no reliance on s427(1) of the Act for the purposes of this submission. In fact, reliance on s427(1) of the Act for this submission was specifically disavowed. However, it is impossible to consider the submission without reference to this subsection because it is the provision which permits the RRT, especially in paragraph (d) thereof, to require the making of an investigation or a medical examination if the RRT thinks it necessary with respect to a review. Importantly, the power is discretionary. That is perhaps why counsel did not seek to invoke it. However, it does set an appropriate background for discussion of the whole topic. 14 Reliance was placed on the observation of Merkel J in Paramanthan v Minister for Immigration & Multicultural Affairs (1998) 160 ALR 24 at 55 to 56. Mr Castelan submitted that in keeping with his Honour's observations on the question of a duty to inquire there was a duty on the RRT in this case to inquire in respect of Mr Lawson's medical condition. 15 It must be borne in mind that the applicant's case was presented to the RRT by Mr Lawson's migration agent, Mr Newman, who is legally qualified. The emphasis of the medical evidence presented to the RRT was to show that Mr Lawson's symptoms of post traumatic stress disorder were consistent with his claimed experiences. 16 It was never put to the RRT that the trauma that led to Mr Lawson's condition may have resulted in a memory lapse. Such a submission may have lead the Tribunal to treat Mr Lawson's evidence with caution and refrain from making an adverse credibility finding based on discrepancies in evidence. 17 It appears that only now, in this proceeding, medical evidence regarding possible memory lapse is being raised in an attempt to submit that the RRT should not have been as stringent against Mr Lawson on the question of credibility. 18 There is a further difficulty about this submission which was clearly identified by Ms Kennedy, counsel for the Minister. The evidence before the RRT did not reveal any problem that Mr Lawson had with memory. Many of his accounts of the incidents that had occurred to him were exceptionally precise. The difficulty lay in some internal inconsistency in those accounts, for example, by reference to the dates on which various events had occurred. 19 Consequently, I see no basis for the submission that there was an obligation on the RRT to inquire about Mr Lawson's medical condition. Certainly the RRT, pursuant to s427(1)(d), had the discretion to inquire on the issue of possible memory loss resulting from post-traumatic stress disorder. But it is very difficult to see how the RRT could possibly be enlivened to the need to inquire on this issue when it was not put to them by Mr Lawson's migration agent, and when the transcript of the hearing before the RRT appears to show that Mr Lawson has no trouble in coherently describing events alleged to have occurred. 20 Support for the approach I take in this matter can be gleaned from the approach taken by McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Cassim [2000] HCA 50, (2000) 175 ALR 209. At paragraph [13] and [14] of that judgment, McHugh J said as follows: "Decisions and dicta in the Federal Court of Australia indicate that a failure by the tribunal to make inquiries about the claims or the evidence of an applicant may sometimes be a breach of the rules of natural justice or render the decision unreasonable. Even if that proposition is valid, those cases and dicta recognise that the tribunal has no general duty to make inquiries about an applicant's claim. They declare that ordinarily the tribunal should only make inquiries if the material is "readily available". Consistently with those decisions and dicta, the tribunal had no duty to make inquiries to see whether in Sri Lanka or elsewhere there was evidence which would support the applicant's claim for a protection visa. The powers conferred by ss 415(1), 424(1) and 427(1)(d) of the Act are discretionary, not mandatory." iii. Misapplication of the "Well- Founded Fear of Persecution" Test 21 I also reject the submission that the RRT misapplied the well-founded fear of persecution test. Contrary to Mr Castelan's submission, the RRT did address whether or not it was satisfied that Mr Lawson was from Sierra Leone. Furthermore, the RRT found that even if Mr Lawson came from Sierra Leone, he did not have a well-founded fear of persecution if returned to Sierra Leone. Nor did the RRT fail to determine whether Mr Lawson had a subjective fear of persecution. It held, in effect, that given its view of Mr Lawson's credibility it could not be satisfied of the existence of such a fear, or its objective holding if such a subjective fear existed. iv. Failure to Set Out Findings of Fact 22 I also reject the submission that the RRT failed to set out its findings on several material questions of fact. The allegedly material questions of fact were said by Mr Castellan to be the following: (a) Whether the Applicant arrived in Melbourne as a stowaway on the ship known as the "California Orion" in December 1998; (b) Whether the Applicant's family were involved in anti-rebel activities in Bo, Sierra Leone; (c) Whether members of the Applicant's family were killed by rebels in Bo, Sierra Leone; (d) Whether the Applicant was attributed anti-rebel views, by reasons of his family's activities; (e) Whether the Tribunal accepted allegations contained in the psychological report, which stated: -"Mr Lawson is suffering from post traumatic stress disorder symptomatology. This includes intrusive thoughts, flashbacks, depression…" (f) Whether the amendments made by the Applicant to his account of his circumstances could be attributed to the Applicant's medical condition, in light of the psychological report; (g) Whether the Applicant's testimony was internally inconsistent or at odds with independently sourced information, by reason of the applicant's medical condition, in light of the psychological report; (h) Whether or not the Applicant became aware of a news event (whether it was published on the internet or otherwise), in relation to the abduction and killing of certain journalists in Freetown, Sierra Leone on 9 January 1999 ("the Freetown report") and subsequently copied the Freetown report for the purposes of his own testimony, but substituted the town of Freetown with the town of Bo." 23 Not one of those matters, in my view, was a material question of fact in the sense addressed in Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845; (2000) 98 FCR 946. The decision to refuse Mr Lawson a protection visa did not turn on the existence or non-existence of any of those matters. What was critical was the RRT's disinclination to believe Mr Lawson's version of events, and even more critical was its failure, in the first instance, to be satisfied that Mr Lawson was from Sierra Leone. v. Failure to Conduct a Fresh Review 24 There is no merit in the submission that the RRT did not provide a review of the delegate's decision. The RRT had different evidence before it on the movements of "California Orion" to the evidence that was before the delegate. The RRT was entitled to, and ultimately did, rely on other evidence than the evidence that was before the delegate concerning Mr Lawson's lack of detailed knowledge about Bo and Sierra Leone generally. This evidence formed part of the relevant background for the RRT to consider. It is clear from reading the RRT's decision that it is incorrect to say that the RRT did not consider such matters for itself. vi. Failure to give Proper, Genuine and Realistic Consideration 25 The final topic for examination is the submission that the RRT failed to give proper, genuine and realistic consideration to the merits of the matter. Assuming this to be an available ground on which to review a decision of the RRT, without determining whether it is (see Anthonypillai v Minister for Immigration and Multicultural Affairs [2000] FCA 1368 – it should be noted that this decision is currently subject to appeal), the ground has not been established on the instant facts in any event. 26 Mr Castelan submitted that this ground was made out having regard to the following eight matters referred to in a written submission supplied by him: "(a) failed to apply itself to the issue of whether or not the Applicant was from Sierra Leone; (b) failed to give any regard to the special considerations applicable in refugee cases, as outlined in Thevandram and Kopalapillai(1998) 86 FCR 546 at 557-8; (c) completely ignored the medical evidence; (d) lacked all logic when it made the California Orion finding; (e) failed to give any consideration to the Applicant's solicitor's submissions, as contained in the letter dated 15 May 2000; (f) failed to apply itself to the political situation in Sierra Leone; (g) failed to consider whether the rebels imputed an anti-rebel view on the Applicant by reason of his family's activities; (h) in light of its finding that the Applicant concocted his entire story, including his country of origin, the Tribunal failed to consider whether the Applicant had the capacity and the resources to invent such a detailed account of events in Sierra Leone." 27 Contrary to those submissions, for the reasons previously identified, the RRT: · did apply itself to whether Mr Lawson was from Sierra Leone · did refer to some of the medical evidence · did not lack logic with respect to its findings regarding the "California Orion". 28 Each of the other five matters raised in that category of alleged failures does not constitute a proper ground of review on the facts. There is no basis upon which it can be assumed that the submissions of the applicant's agent were ignored. Further, it is difficult to comprehend what is meant by an alleged failure by the RRT "to apply itself to the political situation in Sierra Leone". Strictly speaking it is, in any event, unnecessary to do so, given the relevant credibility findings, and even more so, the lack of satisfaction with respect to whether Mr Lawson was from Sierra Leone. The same criticism can be made about the alleged failure to consider whether or not the rebels imputed an anti-rebel view to Mr Lawson or his family. 29 Further, there is no basis upon which it can be assumed that the RRT failed to have in mind the special considerations referred to in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 557 to 558, or whether Mr Lawson was the sort of person to invent his account of his circumstances. To so submit appears to equate to a suggestion that the RRT cannot make adverse credibility findings with respect to a refugee claimant who makes detailed claims that are internally inconsistent in some respects. 30 As none of the applicant's submissions are established, the application will be dismissed. Order 1. The application be dismissed. 2. The applicant pay the respondent's costs, including the reserved costs, if any. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 3 April 2001 Counsel for the Applicant: Mr J Castelan (appeared pro bono) Counsel for the Respondent: Ms M Kennedy Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 7 March 2001 Date of Judgment: 7 March 2001