MZWPH v Minister for Immigration
[2005] FMCA 811
•16 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWPH v MINISTER FOR IMMIGRATION | [2005] FMCA 811 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa. |
| Migration Act 1958 (Cth) Migration Regulations 1994 (Cth) |
NAGV and NAGW of 2002 v Minister for Immigration [2005] HCA 6
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
R v Connell [1944] 69 CLR 430
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441
SZAXF v Minister of Immigration [2003] FCA 1464
WAEJ v the Minister [2003] FCA 188, (2003) 76 ALD 597
| Applicant: | MZWPH |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 1014 of 2004 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 27 May 2005 |
| Date of Last Submission: | 27 May 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 16 June 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr Fernandez |
| Counsel for the Applicant: | Mano Associates |
| Counsel for the Respondent: | Ms Burchell |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant do pay the respondent’s costs fixed in the sum of $6,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1014 of 2004
| MZWPH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Refugee Review Tribunal (the ‘RRT’) made on 30 June 2004 affirming a decision of the respondent's delegate to refuse to grant the applicant a protection visa.
The applicant is a citizen of Sri Lanka. He arrived in Australia on
8 May 2003 on a temporary business visa. On 30 May 2003 he lodged an application for a protection visa with the respondent. The respondent's delegate refused a protection visa on 6 August 2003.
Protection visas are provided for under the Migration Act and Migration Regulations. Section 36 of the Act, together with Schedule 2 of the Regulations, provide the relevant criteria. The law with respect to the granting of such visas is appropriately set out at the commencement of the RRT's decision.
Applications to this court are by way of judicial review for the issue of Constitutional writs. The scope of review is set out in some detail by the High Court in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 and Re Minister for Immigration and Multicultural Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441.
Whilst the applicant relied upon a number of grounds for review in his application, at the hearing of the matter counsel for the applicant confined the application to three issues:
i)that the RRT failed to consider all of the applicant's claims;
ii)that the RRT's rejection of the applicant's evidence was capricious or unlawful; and
iii)that the RRT erred in concluding that the applicant could have applied for a protection visa in Japan.
Ground 1
Counsel for the applicant claimed that the RRT failed to deal with the applicant's political affiliations, in that it did not properly recognise his involvement in a cooperative. This does not accord with the decision of the RRT where it sets out his involvement with the cooperative at page 5 of the decision in the following terms:
There he continued to participate in his political works. Around this time nominations were called for Chairman, Directors and office bearers for the Panduwwasnuwara Cooperative Society. Sponsored by the local MP and People’s Alliance supporters, the applicant campaigned for around 2 months and on 30 April 2000 he was elected Chairman of the Cooperative Society and assumed duties on 3 May 2000. During the election he was targeted by opposition members seeking election. He was assaulted verbally and intimidated.
At page 20 of the decision the RRT also stated:
The Tribunal has considered the applicant’s claims that he is a member of the Freedom Party, the main party in the People’s Alliance (PA) political grouping and that he joined this grouping in 1994. The Tribunal accepts this claim. It also accepts his claims that he was a youth organiser, public speaker at meetings and spoke publicly about UNP bribery and corruption. However, based on the Tribunal’s concerns about the applicant’s credibility and taking into account the fact that he raised the claim for the first time in the second hearing, the Tribunal does not accept that the applicant was an “active politician”, President of the People’s Alliance in his home province or the third most senior leader in his area. The Tribunal has also considered his claim to have served both as a Director and Chairman of the Panduwasnuwara Cooperative Society, having assumed duties as Chairman in May 2000. The Tribunal accepts these claims.
It appears clear that the RRT did in fact consider the applicant's role as a director and chairman of the cooperative society in its decision‑making process.
Counsel for the applicant also relied upon an argument that the RRT ought to have sought out and found country information about general political violence in Sri Lanka in order to provide support for the applicant's claim. The applicant claimed to have been the victim of political violence, in substance, as a result of his participation with the People's Alliance political party (the PA party) at the hands of supporters of the United National Front political party (UNP Party). The country information that was referred to by the RRT member (at pages 17 to 18 of the decision) is a 2002 US Department of State Country Report on Human Rights Practices in Sri Lanka. It does not refer to issues as between the supporters of the two political parties, but does refer to significant issues with respect to the Tamil Tigers.
The RRT member stated that:
The Tribunal has considered what would happen to the applicant if he returned to Sri Lanka. Based on its previous findings that the incidents of harm which the applicant claims to have experienced in Sri Lanka did not in fact occur, and taking into account the fact that the Tribunal has not found any country information to indicate that a People’s Alliance member, with the applicant’s profile or any other profile, would be seriously harmed in Sri Lanka now or in the reasonably foreseeable future, the Tribunal does not accept that if he returned to Sri Lanka any group or individual would have any adverse interest in him for any Convention reason. In making this finding the Tribunal has taken into account its advice to the applicant that it was not aware of any country information which indicated that People’s Alliance members were being currently by the UNP and that the fact that
3 people had been killed in an incident in Sri Lanka the previous month did not in itself mean the applicant would be at risk in Sri Lanka.
At the hearing of this application there was no evidence before me that there was any country information available to the RRT member to the effect of the arguments put forward by the applicant. No such information was provided by the applicant to the RRT, nor did it appear in the court book. Further, there was no evidence of the existence of such material before me today.
In the absence of any evidence that there is such further country information that would support the applicant, it appears to me that it is academic to argue that the RRT ought to have gone looking for such information. I do not accept that this is an appropriate basis for a judicial review.
I am not satisfied that this ground provides a basis for judicial review of the decision.
Ground 2
The substance of the argument by the applicant with respect to ground 2 was that the RRT in assessing the credibility of the applicant had used “its own yardstick” rather than country information. Again there was no evidence of any further country information which may have been of assistance to the RRT. The RRT discusses in detail the evidence that was before it and its findings with respect to the evidence.
Issue was taken with respect to the credibility findings made by the RRT, and reliance placed upon the comments of the Full Court of the Federal Court in WAEJ v the Minister [2003] FCA 188, (2003) 76 ALD 597. At paragraph 15 of the joint judgment of Lee, Hill and Marshall JJ the court said:
15. The RRT purported to ground those findings on its opinion that it was "implausible" that the appellant would be "so easily released if he were of any real interest to the authorities" and on its consideration of the "demeanour" of the applicant "when giving evidence of his alleged political links."
16. The RRT did not explain how the demeanour of the appellant supported its conclusion that the claims that the appellant made as to his detention and manner of leaving Iran were fabricated. The appellant had made those claims in consistent terms since his arrival in Australia. The hearing occupied a little over one hour and was recorded in fourteen pages of transcript. The hearing occupied a little over one hour in which the appellant responded to the Tribunal's interrogatories. The whole of the hearing was recorded in fourteen pages of transcript and that record provided no indication that in the course of the hearing the attention of the Tribunal had been drawn to the conduct or behaviour of the appellant.
17. Obviously it would be unsatisfactory for any tribunal, particularly one charged with determining the important question as to whether it is satisfied that the person before it is a person to whom Australia has protection obligations under international law, to purport to ground an adverse finding on the credit of that person by reference to demeanour alone. Reliance upon demeanour as a determinant of credibility requires the exercise of great care, even by the most experienced arbiters of fact, and it may be unsafe to do so where the witness provides evidence in a foreign language and the tribunal receives only the interpreter's understanding of the witness's account. (See: SAAK v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 121 FCR 185 per North, Goldberg, Hely JJ at [21]-[31].) That impediment is compounded where the witness is not before the tribunal in person and is able to be observed by the tribunal only as a part-image on a video-screen through a transmission that is not instantaneous and may suggest hesitation on the part of the witness. It becomes an unreliable guide if demeanour alone is relied upon to ground an adverse finding on the credit of the witness.
18. If demeanour is relied upon by a tribunal as the reason for discarding an applicant's claims and the tribunal fails to identify how the demeanour of the applicant caused the tribunal to conclude that part, or all, of the evidence of the applicant should be discarded, that course may, in some cases, lead to an argument that the tribunal carried out its decision-making function arbitrarily or capriciously. (See: Meadows v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 370 per Einfeld J at 380.)
In this case the comments made by the RRT with respect to demeanour are as follows:
The Tribunal has been mindful of these considerations in assessing this application. Nevertheless, it has major credibility concerns about the applicant and his evidence and has come to the firm conclusion that the applicant is not a credible witness. In making this finding the Tribunal has taken into account the general, vague, confused, unconvincing and non-spontaneous nature of much of his evidence. It has also taken into account the fact that he raised new claims for the first time in the hearing. Additionally in the two hearings the Tribunal gained a strong impression that the applicant was fabricating evidence. On several occasions it informed him of its concerns in this regard.
The RRT's comments set out the nature of the conduct of the applicant that led to the RRT finding the applicant's demeanour was a factor that led the RRT not to accept his evidence.
However, like WAEJ, this case did not turn on demeanour alone. The RRT goes on to discuss a number of reasons in the evidence as to why it had found the applicant's evidence unacceptable. For example, additional information was provided at the second hearing, which was not provided at the first hearing, the implausibility of a number of his claims.
The difficulties with respect to the applicant's evidence are well summarised by counsel for the respondent as follows:
32. The Tribunal had grave reservations as to the credibility of the applicant’s claims as follows [CB]:
32.1. the Tribunal had “major credibility concerns about the applicant” and his evidence and it took into account the general, vague, confused, unconvincing and non-spontaneous nature of much of his evidence [CB 98];
32.2the Tribunal took into account the fact that the applicant raised new claims for the first time in the hearing [CB 98];
32.3. it rejected the claims involving the incident on 20 November 2001 when UNP supporters and a brother of a government minister allegedly forced a gun barrel in his mouth and assaulted him as fabricated because the applicant did not take up the opportunity to provide additional information about the incident and the subsequent evidence provided was confused and unconvincing [CB 99];
32.4.the Tribunal had serious concerns about the applicant’s evidence in relation to the 31 December 2001 incident where 400-500 UNP supporters allegedly surrounded his office. The Tribunal took into account the “confused, contradictory, unconvincing and non-spontaneous nature of much of the applicant’s evidence in both hearings” (CB 99];
32.5. the inconsistent, confused and contradictory evidence in relation to the office building and the new claims concerning political murders [CB 100];
32.6. the inconsistent evidence in relation to the applicant’s alleged injuries from the 31 December 2001 incident [CB 100];
32.7. the vague and confused nature of much of the applicant’s evidence, the Tribunal’s concerns about his overall credibility and its earlier finding that he had fabricated evidence led to the Tribunal not accepting that the incidents which the applicant alleged had occurred both prior to and following the December 2001 elections had occurred [CB 101];
32.8. based on its findings as to the applicant’s credibility and his fabricating evidence, the Tribunal did not accept that the applicant knew or had any contact with the Sri Lankan President [CB 102];
32.9. the Tribunal did not accept the applicant’s new claims of secretly going to Japan and making enquiries about his safety because of the applicant’s credibility and the unconvincing nature and fabrication of some evidence (CB 103];
32.10. the Tribunal had concerns about some of the documents provided by the applicant and it found that the applicant had fabricated the claims in the police report dated 11 January 2004 [CB 103]; and
32.11. the Tribunal had concerns about the applicant’s evidence in relation to the statement purportedly from the Cooperative General Manager and did not accept the statement nor the letter allegedly from the Kuliyapitiya Base Hospital (CB 103-104].
As counsel for the respondent submitted, it is open to the RRT to make findings with respect to credibility which are findings as to the merits: see SZAXF v Minister of Immigration [2003] FCA 1464 at [31].
I find no basis for judicial review in the arguments under this ground.
Ground 3
In support of ground 3 the applicant relies upon the references made by the RRT to the opportunity he had to apply for a protection visa when travelling to Japan. In this regard the RRT said:
The Tribunal has considered the applicant’s travel to Japan on three separate occasions prior to his travel to Australia and the fact that despite the serious problems he claims to have experienced in Sri Lanka he did not seek protection in Japan or in any other country. Based on the facts that: the applicant visited Japan in December 1998; subsequently he sought election as Chairman of the Panduwasnuwara Cooperative Society; despite allegedly having received death and other threats and having been targeted by opposition members and assaulted verbally and intimidated during the election campaign he had chosen to assume duties and had done so in May 2000; in 2001 he had visited Japan again before returning to Sri Lanka where he continued with his Cooperative-related activities before visiting Japan again on a third occasion prior to allegedly abandoning his job in October 2002 due to his problems in Sri Lanka; the Tribunal does not accept that at any time between his first visit to Japan and his third visit there in July 2001 the applicant had a well-founded subjective or objective fear of persecution. It finds that had he held any such fear he would have sought protection in Japan. In making this finding the Tribunal has taken into account the applicant’s evidence that he had been focused on Cooperative members and his professional duties and the Tribunal’s advice to him that clearly he had not been sufficiently concerned about his situation at that time to have remained outside Sri Lanka. It has also taken into account the new claims raised for the first time by the applicant in the first hearing that he had gone to Japan secretly and that he made enquiries about his safety there. Additionally the Tribunal refers to the fact, raised with the applicant in the first hearing, that despite allegedly having experienced many problems in Sri Lanka around election time in December 2001, he had travelled to Japan approximately 4 months later and then chosen to return to Sri Lanka. Based on the Tribunal’s previous findings, in part in relation to the applicant’s credibility and the unconvincing nature and fabrication of some evidence, the Tribunal does no accept these claims. It finds that the applicant has also fabricated the new claims.
The RRT relied upon this finding in its conclusions where it stated:
The Tribunal has considered the applicant’s departure from Sri Lanka without any apparent problem. Based on its previous findings about his credibility and evidence, it does not accept his claim, raised for the first time in the second hearing, that he had come to Australia secretly. In making this finding it has also taken into account his three return visits to Japan from Sri Lanka between December 1998 and July 2001 and the fact that on those occasions he did not seek protection in Japan or in any other country. Also the Tribunal finds that on the basis of his failure to seek state protection in Japan and by reason of the Tribunal’s findings that the applicant has never been harmed by reason of his political opinion in the past, that the applicant did not hold a well-founded fear of persecution at the time he left Sri Lanka for Australia in 2003.
The applicant said that the RRT was wrong to rely upon the failure of the applicant to seek protection when visiting Japan and relied upon the recent High Court decision of NAGV and NAGW of 2002 v Minister for Immigration [2005] HCA 6. A copy of that decision was provided by the applicant at the hearing.
It appears to me that that decision does not affect the issues before the RRT in this case. In NAGV the claims by the applicant for a protection visa were refused on the basis that as a Russian of the Jewish faith the applicant and his family would have been able to travel to Israel and therefore did not need the protection of Australia. There was no real issue as to the need of the applicant in that case for protection. It was not suggested in that case that the applicant had in fact travelled to Israel and then returned to Russia or moved on to Australia from Israel.
In this case the RRT did not utilise the evidence of the applicant's travel to Japan as a basis for showing that the applicant was not entitled to a protection visa. The applicant would have been entitled to seek a protection visa from any of the 141 countries that are signatory to the convention. The fact that he chose Australia is not in itself relevant to the determination of whether or not he is in need of protection.
What is relevant though, is that the RRT had to make a determination as to whether or not his application was genuine. For his application to be genuine he must have had a well-founded fear of persecution. The RRT considered that if the applicant did in fact have a well-founded fear of persecution at the relevant times, then he would have taken up the opportunity, whilst he was in Japan, of seeking a protection visa in that country. He did not do so despite a number of visits. The fact that the applicant did not avail himself of an opportunity to obtain protection, but rather, returned to Sri Lanka where he says that he was at risk, appears to me to be a relevant matter of fact for the RRT to take into account in its fact-finding process.
Had the RRT concluded that the applicant was simply ineligible for a protection visa in Australia as he had been to Japan and not sought a Japanese protection visa, then the RRT may well have erred at law. However, the RRT did not put it so high. The relevance of the failure of the applicant to seek a Japanese protection visa was the fact that it was done in circumstances where he says that he had a well‑founded fear, and nonetheless returned to Sri Lanka rather than obtain protection. Such conduct was properly taken into account by the RRT in deciding whether he had a well founded fear.
In the circumstances I do not accept that this ground provides a proper basis for judicial review.
The applicant also referred me to R v Connell [1944] 69 CLR 430 at 430 to 432. There is nothing in the statements of general principle that further advances the applicant’s argument in this case.
I therefore refuse the applicant's application.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate:
Date:
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