M164 of 2002 v Minister for Immigration
[2004] FMCA 118
•17 June 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M164 of 2002 v MINISTER FOR IMMIGRATION | [2004] FMCA 118 |
| MIGRATION – Application for review of decision of the Refugee Review Tribunal affirming a decision not to grant protection visas – whether the Tribunal failed to give a proper consideration to the applicant’s claims that there was a real chance of persecution in the event the applicants return to Sri Lanka – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.36(2), 474, 476
MIMA; ex parte Durairajasingha (2000) 168 ALR 407
W148/00A v MIMIA (2001) FCA 679
Kopalapillia v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
VGAO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 68
WAAI v MIMIA (2002) FCA 293
| Applicants: | M164/2002 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 534 of 2003 |
| Delivered on: | 17 June 2004 |
| Delivered at: | Melbourne |
| Hearing date: | 30 January 2004 |
| Judgment of: | Bryant CFM |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr Fairfield |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
THAT the Application be dismissed.
THAT the Applicant pay the Respondent’s costs fixed in the sum of $6,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ534 of 2003
| M164 of 2002 |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicants in these proceedings are a wife, husband and their two children who are citizens of Sri Lanka and arrived in Australia on 14 August 2000. On 13 September 2000 they lodged an application for protection visas under the Migration Act 1958 (Cth) (the Act). On 24 October 2000 a delegate of the Minister for Immigration and Multicultural Affairs refused to grant protection visas and on 24 November 2000 the applicants applied for review of that decision. At the hearing the applicant wife gave evidence and on 25 July 2002 the Refugee Review Tribunal (the Tribunal) affirmed the decision of the minister's delegate not to grant a protection visa.
The applicant applied in the High Court of Australia for a writ of certiorari prohibition and mandamus and on 7 February 2003 Hayne J remitted the matter to the Federal Court of Australia. By order made on 20 May 2003 the matter was transferred to the Federal Magistrates Court for hearing.
The applicants are Sinhalese Christians. The husband and wife are aged 40 and the children are under 10. The husband and wife were both educated at secondary school in Sri Lanka and the husband worked as a marketing executive whilst the wife was a telephonist at the Embassy of the United States of America. They were originally from Candy and moved to Colombo in 1985.
The family lived in Colombo in a large apartment block. The applicant wife claimed that strangers used to come and go at night to another flat in their block. She identified the strangers as Tamil men whose activities she monitored for a while and on 4 April 2000 informed the authorities of her concerns about them.
She claimed that the following day she began to receive threatening telephone calls from people stating that they knew she had informed the police about some of their colleagues who were subsequently arrested. She said that some of the callers identified themselves as being connected with the Liberation Tigers of Tamil Elam (LTTE). She said the police did not inform her that they had made any arrests but she soon learnt from newspaper articles of the arrests. She claims that she also received threatening letters from LTTE cadres.
She claimed that the day after the initial threatening calls she moved with her family to a brother's residence for their safety. She said that they returned home temporarily before moving to Kegalle for about five days to stay with another relative. After a few more days at their own home they moved to a sisters house for a while. She claimed that when her husband returned home to collect their mail he learned from neighbours that some strangers had asked about them in her absence. She claimed that threats continued to be made to their home and to her workplace and as a consequence she took several days off work.
She and her family went to her mother's place in Candy at the end of April 2000 and subsequently stayed away from their own home, at various brothers' houses right up until the time they left for Australia.
She said that on another occasion some strangers who attempted to break open the gate at her sister's house asked for the whereabouts of her and her husband and said they knew she had stayed at her sisters. She also claimed that on a later occasion they were closely watched by strangers at a railway station until security forces arrived.
She further claimed that in early May on her way to work she was approached by someone who told her that she and her family were being watched and they would be annihilated. She said that as result of threats made against the family she lodged a written complaint with the police just over a fortnight after the initial threats.
She claimed that their house was eventually rented out by her sister some months after they had left for Australia but the tenants soon left as they also experienced threatening telephone calls asking about her and her family.
The applicant's husband also gave evidence about suspicious visits at night by Tamils to an apartment near theirs and claims that the family faced a series of threats, even of death, after reporting the activities of Tamil strangers to the police. He said that they reported the threats to the police after they received a written threat, in addition to the verbal threats they had formally received by telephone. He said that neither he nor his wife informed the newspapers of their actions and that he and his wife assumed the police must have been the source of newspaper articles.
He said that after the threats he and his wife often stayed away from their own home at the home of various relatives. He said that his memory was impaired but that from May until the time of the family's departure for Australia they stayed at his wife's mother's place.
The applicant submitted a range of documentation in support of the claims purporting to be newspaper articles relating to their report about Tamils to the police, letters from family members, a warning letter from the LTTE and other correspondence.
The Tribunal's decision
The Tribunal accepted that the applicants lived in Colombo in a large block comprising some 80 apartments.
The Tribunal weighed the evidence before it and found that it did not find the applicants story at all credible. The Tribunal was not satisfied that any of the events as outlined by the applicants in the months leading up to their departure from Sri Lanka actually occurred. The Tribunal also found that if they were to face threats of harm from anyone associated with the LTTE they would be able to call upon the protection of the State.
The Tribunal examined the correspondence submitted by the applicants and found the tone and content to be contrived and self serving. In light of that and in light of the lack of credibility the Tribunal had found about the applicant's claims the Tribunal concluded that the correspondence referred to was contrived in order to bolster false claims to refugee status. The Tribunal also found for the same reason that correspondence purportedly from Thomas' Preparatory School and to a Sri Lankan Telecom office was contrived. Thus the Tribunal concluded that the applicants did not face a real chance of persecution for any convention reason and did not satisfy the criterion set out in s 36(2) of the Act for the grant of protection visas.
The reasoning of the Tribunal in rejecting the applicants claims and credibility was as follows:
a)although threatening telephone calls were said to have commenced the day after the applicants claim they reported some Tamil to the police, it was implausible that the applicant's names would have been provided by police to persons suspected of involvement with the LTTE;
b)it is also implausible that the callers would identify themselves as being members of an essentially clandestine terrorist group;
c)it is entirely implausible that police would give the names of the applicants to newspapers due to the risk that they would be exposed if their names were published and it is in the interest of police to protect their sources not expose informants to unnecessary risk
As to the documentary provided by the applicants:
a)the newspaper articles submitted as verification of the claims are undated. Excerpts of pages and have no newspaper banner;
b)although it was said by the applicants to have been published in or around April 2000 and brought by them to Australia in August 2000 they were not submitted until June 2002, well after the application for a protection visa;
c)an article referring to one of the applicants by name clearly indicates he is the source of the report about his circumstances yet the applicants claim they had no contact with the media
In relation to the applicant's claims that they had moved from their home address to avoid threats and actual harm from the LTTE the Tribunal noted that despite claims of utter fear for their lives they returned to their home shortly after having fled, albeit, temporarily;
a)the applicant husband at least also returned home on one or more subsequent occasions; and
b)the applicant's evidence as to where they lived in the period immediately before their departure for Australia was inconsistent in some key aspects. Notwithstanding some attempts by the applicant wife to prompt her husband when he was giving generally vague evidence as to their whereabouts his own evidence was significantly discrepant from his wife's.
As to the claims of movements being monitored by strangers:
a)the claims that their movements were monitored by strangers whom they believed to be connected with the LTTE and that the applicant wife was approached on one occasion and informed she and her family would be annihilated lacks credibility. It is implausible that the LTTE would know of the applicant's alleged role as informers and that somehow having learned of it would then go to extraordinary lengths to monitor them at relative's homes and in public places and threaten future dire harm without ever carrying out those threats;
b)the LTTE is notorious for its resort to violence and there was ample opportunity locate them and eliminate the alleged threat posed by them if any LTTE cadres felt they had any need to do so; and
c)in relation to a written "final warning" from the LTTE the Tribunal gave no weight to the self serving and contrived time of the letter and opined that as an essentially clandestine organisation with a long history of direct violence against its opponents it is implausible that the LTTE would have issued a written warning to the applicants and yet despite numerous opportunities and allegedly persistent surveillance of them would fail to act on its threats. The Tribunal concluded that the letter was not genuine and was produced in an attempt to underpin false claims to refugee status.
The Tribunal did not find the applicant's story at all credible, did not accept the applicants reported Tamils to the police, that they were threatened in any way by LTTE cadres or that they ever went into hiding for any reason.
The Tribunal noted and gave weight to the availability of the State protection in Colombo and elsewhere and in the light of that and considering the applicant's preparedness to report LTTE suspects to the police and the seriousness of alleged threats against them the Tribunal did not find it credible that they would delay reporting such threats to investigating authorities.
In assessing all the material before it the Tribunal was not satisfied that any of the events as outlined by the applicants in the months leading up to their departure from Sri Lanka actually occurred and that if they were to face threats of harm from anyone associated with the LTTE they would be able to call upon the protection of the State.
The applicant's claims
The applicant wife appeared before the Court unrepresented to prosecute her claim. She relied upon written contentions dated
25 August 2003. Although she was articulate, her oral submissions did not advance the matter further than the written submissions. The submissions of the applicant contend that the Tribunal did not give proper consideration to the claim that there was a real chance of persecution if the applicants returned to Sri Lanka. The remainder of the contentions in reality deal with the findings by the Tribunal on credibility and arguably raise the question about whether the Tribunal was entitled to make the findings that it did.
As was set out by the High Court in MIMA; ex parte Durairajasingha (2000) 168 ALR 407 at [67] McHugh J said:
... this is essentially a finding as to whether the prosecutor should be believed in his claim - a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the subset reasons why it accepted or rejected individual pieces of evidence.
In W148/00A v MIMIA (2001) FCA 679 the Full Court of the Federal Court said:
A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against the finding.
(Per Tamberlin and R D Nicholson JJ at [64]).
However at [67] the Full Court also said:
Where the question of credibility is determinative of a Tribunal decision, to simply assert that the Tribunal considers the applicant's account to be 'implausible' or 'highly unusual' does not constitute a finding on the question raised. Such expressions are more in the nature of observations or side comments rather than findings. The reasoning process in supporting evidence that forms the basis on which finding that evidence is rejected should be disclosed and clear findings made in direct and explicit terms. It is not sufficient simply to make general passing comments on general impressions made by the evidence where the issue is important or significant.
(Per Tamberlin and R D Nicholson JJ, at [67]).
The applicant contended that the Tribunal did not take into account the fact that she had given information to the police that led to the arrest of members of the LTTE and that this was a crucial part of her claim to have a well founded fear of persecution. The Tribunal did however consider that evidence. In the Court book at page 6 the Tribunal said:
The Tribunal does not accept that the applicants reported Tamils to the police.
The reasons for rejecting this claim were the reasons set out above for the rejection of the entirety of the applicant's claims. On no view could it be said that the Tribunal did not "take into account" the applicant's claim.
The applicants further contended that the Tribunal failed to properly consider that the newspaper article clearly indicated her name as the person who gave information to the police that resulted in the arrest of the LTTE members. Both the article and the translation were provided by the applicant to the Tribunal and appear at pages 94 and 95 - 96 and 97 of the Court Book. The article identifying the applicants said as follows:
Death Threat to Informants. Mr (applicant named) who is a resident of Malingawatte states that the and his family has been subject to death threats from a group of unidentifiable persons alleging that he has provided information to the police about the terrorist Tigers.
He has complained to Malingawatte police about such threat he receives over the telephone during night time.
However he further states that it is becoming increasingly difficult for him to stay in that house any longer.
The Tribunal however did consider the newspaper article. The gravamen of the Tribunal's concerns was that pages were produced with no newspaper banner and were undated. The Tribunal pointed out correctly, that the applicant husband had said that neither he nor his wife informed the newspapers of their actions and that he and his wife assumed the police must have been the source of the newspaper articles. Yet the article submitted clearly purports to show the source of the information as being the applicant's husband. On any view the Tribunal was entitled to regard the article with some suspicion.
The applicant also contends that the Tribunal failed to have regard to the letter submitted indicating that the tenants living at her residence continued to face continuous problems. The Tribunal again however did consider these matters[1]. The Tribunal said:
The Tribunal has examined correspondence belatedly submitted by the applicants regarding problems, including continuing threats from the LTTE, to tenants living at the applicant's house under arrangements negotiated by the applicant's wife's sister. The tone and content of the correspondence is contrived and self serving. In light of the overall finding about the lack of credibility of the applicant's claims the Tribunal concluded that the correspondence had been contrived to bolster false claims.
[1] See Court Book, page 7.
I have considered carefully the claims made by the applicant which is really seeking a merits review. However in considering the reasons of the Tribunal I have considered whether it could be said that the reasoning process of the Tribunal is flawed in any way. In Kopalapillia v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 the Full Court comprising of O'Connor, Branson and Marshall JJ, at page [558] said:
Whilst a decision maker concerned to evaluate the credibility of the testimony of a person who claims to be a refugee in Australia will need to consider, and in many cases consider sympathetically, possible explanations for any delay in the making of claims, and for any evidentiary inconsistencies, there is not a rule that a decision maker may not reject an applicant's testimony on credibility grounds unless there are no possible explanations for the delay or inconsistency ..... nor is there a rule that a decision maker must hold a 'positive state of disbelief' before making an adverse credibility assessment in a refugee case. The reference by Foster J, sitting as a member of the Full Federal Court in Gur's case at 191 to a requirement for a 'positive state of disbelief' was not directed to this issue of determination of credibility but rather to the question of when an adverse credibility finding will logically found a positive finding that a particular factor asserted by the witness does not exist.
Dealing with a complaint that a Tribunal decision was quite irrational, Allsop J, with whom Wilcox and Cooper JJ agreed in VGAO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 68 set out at paragraph [54]:
Whilst I am less than persuaded by factual conclusions drawn by the Tribunal, in particular concerning the supporting letters of Mr Pierera and the appellant's father, I do not see the treatment of these factual matters as disclosing a legal basis of review under s 476 of the Act.
At paragraph [56]:
There can be, in some circumstances, a distinction sometimes not easily drawn, between failing to deal with the claims of the applicant, on the one hand, and failing to give what the Court thinks should be appropriate weight or consideration to probative and logically relevant material before the Tribunal. The former may well reveal a failure to complete the jurisdictional task, the latter may not.
And at paragraph [57]:
Whilst I am less than persuaded by the fact finding of the Tribunal, I do not think that it can be concluded that the Tribunal's task 'in reviewing' and 'considering' the appellant's application has miscarried.
Here there can be no doubt that the Tribunal considered the claims of the applicant and it remains a function of the Tribunal to form judgments about the merit of the assertions made to it in support of claims (see WAAI v MIMIA (2002) FCA 293). It is not open to this Court to interfere with the fact finding of the Tribunal in such a case, even if it were to form a different view of the evidence.
The decision is thus a privative clause decision pursuant to s.474 of the Act and no ground for overturning that decision has been made out and the application must be dismissed.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Bryant CFM
Associate: Peter Smith
Date: 17 June 2004
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