QAAR v Minister for Immigration - [2005] FMCA 285

FEDERAL MAGISTRATES COURT OF AUSTRALIA

QAAR v MINISTER FOR IMMIGRATION

[2005] FMCA 285

MIGRATION – Review of Refugee Review Tribunal decision affirming a delegate’s refusal of a protection visa – disputed findings of fact – no reviewable error found.

Migration Act 1958 (Cth)

Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2

Applicant:

QAAR

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

BRG 006 of 2005

Delivered on:

14 March, 2005

Delivered at:

Brisbane

Hearing date:

28 February, 2005

Judgment of:

Jarrett FM

REPRESENTATION

Counsel for the Applicant:

Mr M. Wilson

Solicitors for the Applicant:

Rouyanian & Company Lawyers

Counsel for the Respondent:

Ms M. Brennan

Solicitors for the Respondent:

Clayton Utz

ORDERS

Application dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG 006 OF 2005

QAAR

Applicant

And

MINISTER FOR IMMIGRATION &MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application pursuant to the s.39B of the Judiciary Act 1903.

Background

The applicant was born on 4 February, 1977 and is a citizen of Uganda. He holds a Ugandan passport issued on 1 November, 2002.

The applicant entered Australia on 30 September, 2003 on a subclass 676 visitor’s visa.
On 24 October, 2003 he applied for a Protection visa (Class XA).

He claimed that he needed protection primarily because he feared persecution from his former connections with the Lord's Resistance Army in Uganda (“LRA”) and persecution from the government of Uganda for his involvement with the LRA.
On 11 December, 2003 a delegate of the respondent refused the application noting that the applicant had "not put forward a credible case for persecution". On 8 January, 2004 the applicant applied to the Refugee Review Tribunal (“RRT") for a review of the delegate's decision. On 14 October, 2004 the RRT handed down its decision made on 22 September, 2004 to affirm the respondent’s delegate’s decision not to grant the applicant a Protection visa.

Contentions

The decision of the Tribunal is a private in clause decision: s.474(2) of the Migration Act 1958. That appears to be common ground because the applicant has argued his case on that basis and has provided reference in his written outline of submissions to the decision of the High Court of Australia in Plaintiff S157 v The Commonwealth of Australia (2003) 195 ALR 24. To succeed therefore the applicant must demonstrate that the Tribunal has fallen into error of the type that might properly be characterised as "jurisdictional error" or that he has been denied procedural fairness.
In grounds 1, 2 and 3 of the application, the applicant claims that the Tribunal committed a jurisdictional error because it identified a wrong issue, or alternatively relied on irrelevant material in a way that affected the exercise of its power in making a finding that:
a)a copy of a certain newspaper article relied upon by the applicant was not an authentic reproduction of the relevant page of the relevant newspaper;
b)a certain arrest warrant relied upon by the applicant was not genuine;
c)the applicant's credibility was suspect based on fact the applicant alleged he:
i)was abducted by the LRA when the Tribunal concluded from inspection of certain country information that only children are abducted by the LRA whereas readily available alternative contemporary country information indicated that young adults such as the applicant as well as children are routinely abducted by the LRA;
ii)had escaped from the LRA and had been recaptured without execution whereas it was the unsubstantiated position of the Tribunal that immediate execution was the inevitable result of an attempted escape;
iii)had lived incognito in Uganda whereas it was the position of the Tribunal that, as the applicant still had significant formal documentation in his own name, incognito living was not likely.
The second broad ground of complaint set out in grounds 4, 5 and 6 of the application was that the Tribunal denied the applicant procedural fairness in that:
a)certain materials referred to by it in its reasons for decision were not delivered to the applicant or explained to him nor was he given the opportunity to respond to them prior to the decision being made;
b)the Tribunal relied upon certain materials that are described as "generalised, not contemporaneous” and that gave an "imbalanced view of the true state of affairs in Uganda and the activities of the LRA" and that the Tribunal did not to permit the applicant to present material that “would have thrown more "true light on his situation" and the state of affairs in Uganda;
c)the Tribunal failed to allow the applicant the right to make submissions on his grounds and comment upon adverse material sourced by the Tribunal during the course of the hearing.

Discussion

The first ground of the application was based upon the Tribunal finding that a certain newspaper article relied upon by the applicant was not authentic. During the course of the Tribunal’s consideration of his application, the applicant submitted to the Tribunal an article purporting to be from a Ugandan newspaper known as The Monitor. The article purported to demonstrate that the applicant was wanted for arrest by a body known as the International Security Organisation.

The article purported to appear in the edition of The Monitor the Thursday, October 16, 2003.
The Tribunal made inquiries with the Australian High Commission in Nairobi and received information that the article was not authentic. The Tribunal informed the applicant that it did not consider the article to be genuine and invited his response. He never made a response to the Tribunal’s view that the article was not authentic.
Initially it was argued before me that the Tribunal had acted upon information given to it by the Australian High Commission in Nairobi without stating whether such advice was oral or written. The argument was that the Tribunal should have insisted upon receiving a copy of the of the relevant article from the Australian High Commission rather than simply taking the word of the staff of the High Commission that the copy of the article propounded by the applicant was not authentic.
The documents in the bundle of relevant documents filed by the respondent on 14 January, 2005 however, reveals that in fact the Tribunal received a facsimile from the Australian High Commission on 27 July 2004 attaching a copy of the authentic page 12 of The Monitor newspaper for 16 October, 2003. It does not refer to the article propounded by the applicant. When that was pointed out to the applicant's counsel, this ground of the application was abandoned.
On 25 August, 2004 the applicant wrote to the Tribunal in response to the Tribunal's request for an explanation of the discrepancy over The Monitor article. Instead of addressing that issue, the respondent provided copies of further articles from The Monitor and other sources which did not mention him specifically. He also said this:
"Attached is a copy of the warrant of arrest in the chief magistrate court of Bwganda road.
…
Attached too is a fax copy of a warrant of arrest in the chief magistrates court of Buganda (sic) road. Behind this information are the rebel collaborator who want me dead because they think am a adanger (sic) into their lives having seen them face to face."
The Tribunal dealt with the authenticity of the warrant in this way (at page 14 of the decision record):
Finally and most clearly, the “copy” of a newspaper article mentioning him which he submitted and which has been shown to be a forgery further undermines his general credibility. Accordingly, for this reason and because of my inability to accept his other claims, I do not accept that the warrant for his arrest is genuine. I am reinforced in this view because I find it implausible that such a warrant should be issued 5 months after he arrived in Australia and 2 years after he arrived in Kampala.
The references in that paragraph to "his general credibility" and “inability to accept his other claims” are references to findings made by the Tribunal earlier in its reasons. Those findings are as follows (at pages 13-14 of the decision record):
I accept that the applicant is a citizen of Uganda.
I have great difficulty with the rest of the applicant’s evidence. His description of his capture by, escape from and recapture by the LRA is not credible. In particular, the LRA are famous for being merciless with those who try to escape and are recaptured. His account — involving kneeling and showing them “his real heart” — is not believable.
Even if I were inclined to give him the benefit of the doubt on this matter, that inclination would be removed by my inability to be satisfied as to the rest of his claims. He claimed to fear being murdered by the LRA after he arrived in Kampala. However, he had had a passport for more than a year before leaving for Australia, without making any alternative attempts to leave the country. He had gone to western Kenya 2 months before leaving for Australia and had returned to Uganda. He explained this in terms of his having been told that he could not expect to go to Kenya for free food. However, he made no attempt to reach the capital, Nairobi, where international welfare agencies, including UNHCR, have their offices. These are not the actions of a person in fear of his life. He claimed to have waited because he did not have enough money to fly to Australia, but, if in genuine fear of his life, there were alternatives much closer at hand and less expensive to reach. In fact, the applicant has produced no corroborating evidence that, while he was in Kampala, he had any reason to fear harm.
The applicant has also made specific claims which cannot be sustained. He claimed to have lived incognito in Kampala, using a variety of different names. Yet, with the single exception of the company ID card, every document he submitted was in his own name.
The applicant argues that the Tribunal was not entitled to make finding about the authenticity of the warrant using, as it did, its findings about The Monitor article and about his other claims as set out above. It is argued that either the Tribunal should have accepted his claims, or made its own enquiries as to the authenticity of the warrant.
There is no doubt that a tribunal does not have to uncritically accept all assertions made to it by an applicant: Randhawa v Minister for Immigration, Local government and Ethnic Affairs (1994) 52 FCR 437 at 451; Sivalingam v MIMA (unreported, Federal court of Australia, O’Connor, Branson & Marshall JJ, 17 September, 1998), Aruliah v MIMA (unreported, Federal court of Australia, Marshall J, 1 October, 1997) at 6; Sellamuthu v MIMA (1999) 90 FCR 287 at [40].

The Tribunal’s task is to weigh the evidence and make relevant findings and it is a matter for the Tribunal to determine the probity of the evidence before it: MIMA v Eshetu (1999) 197 CLR 611.
I was not taken to any authority for the proposition that the Tribunal should have made its own enquiries as to the authenticity of the warrant. Certainly it has the power to do so, but I am not satisfied that it should have done so in this case. Even if I am wrong about that, it is plain that the applicant is simply trying to overturn the findings of credit made against the applicant, by demonstrating that there might be some evidence that shows that the Tribunal’s determination was wrong. The applicant is not entitled to adopt that course on this application. Even if the Tribunal has made an error of fact, the Tribunal has not established a jurisdictional error, as he is required to do. This ground of the application is not made out.
In support of the ground 3(a) of the application, the applicant says that the Tribunal should not have drawn an adverse inference against his credibility by reason of the fact that its conclusion that "the LRA did not usually capture and hold adults" was unsupported by the evidence and was against the weight of the evidence. He argues that the Tribunal ought to have made further inquiries which would have revealed information published on the Internet about the LRA.

The particular information isolated by the applicant and placed before me states: "the LRA has abducted large numbers of civilians are training as guerrillas; most victims were children and young adults.". The applicant's case is summarised thus (para 20 of the applicant’s outline of submissions: "It is submitted that, as the Tribunal could have readily found public domain material supporting the applicant's abduction but failed to do so, means that the Tribunal relied on irrelevant material and/or ignored relevant material in making its decision and thus the decision is void for jurisdictional error."
It is apparent, however, from the decision record that the Tribunal put to the applicant that the LRA did not usually capture and hold adults. He did so during an oral hearing that was held on the 9 June, 2004.

As I have earlier commented, the applicant provided further written material to the Tribunal in August, 2004. It is plain from the decision record that the applicant was informed of the Tribunal's view that the LRA did not usually capture and hold adults and he had ample opportunity, it appears to me, to place before the Tribunal information that demonstrated the contrary. He did not do so and I was not taken to any information that was before the Tribunal when it made its decision that is to the contrary of what the Tribunal decided.
The Tribunal was entitled to form the view of the facts that it did, based upon the evidence before it. It was not bound, in my view, to go trawling through the Internet to locate information that might have been different to the other information that it had. As the Full Court of the Federal Court of Australia made clear in NAHI v MIMA [2004] FCAFC 10 at [11]: “The question of the accuracy of the ‘country information’ is one for the Tribunal, not the Court. If the Court would make its own assessment of the truth of country information, it would be engaging in merits review. The Court does not have power to do that.” Indeed, even if the additional material referred to by the applicant was before the Tribunal, I am not persuaded that the Tribunal would have come to a different conclusion or, if it was likely to do so, its failure to undertake the suggested research was a jurisdictional error on its part. Ground 3(a) of the application is not made out.
The applicant concedes that the Tribunal's decision is one based upon the credibility of the applicant’s. The gravamen of grounds 3(b) and 3(c) of the application is that the Tribunal’s errors with respect to its findings about The Monitor article and the arrest warrant necessarily infected its consideration of the applicant’s claims of escape from the LRA and living in Kampala incognito. The applicant summarises his submissions thus:
"It is submitted that the Tribunal's findings on these issues was infected because of the jurisdictional error that attached to the findings on the newspaper article and the arrest warrant and thus the decision is void for jurisdictional error".
I am not persuaded that the Tribunal's findings on The Monitor article or the warrant of arrest are in fact infected with jurisdictional error and accordingly, I am not satisfied that the Tribunal's scepticism about the applicant's claims of abduction or living in Kampala incognito are also infected with jurisdictional error. Ground three of the application fails in its entirety.
The applicant says that the two articles extracted by the Tribunal in its decision record should have been given to the applicant for his comment. The decision record indicates (at pp. 8 – 10), however, that the Tribunal put to the applicant during the oral hearing the following matters:
a)that the LRA did not usually capture and hold adults. It used captured adults as porters for loot taken during raids and then let them go;
b)that it captured children to use the soldiers;
c)that when anyone escaped, recapture was usually followed immediately by execution, to discourage people from escaping;
d)escapees from the LRA did live peacefully in Lira and other towns;
e)there was no country information suggesting that the LRA was looking for its former prisoners.
The obligation imposed upon the Tribunal by s.424A(3) of the Migration Act 1958 is to give "particulars of any information that the Tribunal considers would be the reason, or part a part of the reason, for affirming the decision…".
In this case, I am satisfied that the Tribunal did give particulars of that information to the applicant. It did not give to him copies of the relevant articles, but that is not necessary. What is necessary is that he be given particulars of any information that the Tribunal considers would be the reason or a part of the reason for affirming the decision. The Tribunal did that in this case. This ground of the application fails.
As I have mentioned above, it is a matter for the Tribunal to make findings about the accuracy of "country information". “It is not, …, an error of law, or a jurisdictional error, for the Tribunal to base a decision on country information that is not true.”: NAHI v MIMA at [11]. Ground 5 of the application fails.
By ground six of the application, the applicant complains that he was denied procedural fairness in that the Tribunal failed to allow him to make submissions on his grounds and comment upon adverse material sourced by the Tribunal during the course of the hearing. Having considered the decision record of and the material before the Tribunal, I am not satisfied that this ground has been made out. The Tribunal conducted an oral hearing at which the applicant attended and gave evidence. The Tribunal put to the applicant at the oral hearing its scepticism about his claims. After the oral hearing, the Tribunal wrote to the applicant expressing its view that The Monitor article relied upon by the applicant was not genuine. He was given an opportunity to respond and in fact he did respond, although not to the precise issue raised by the Tribunal. The applicant took the opportunity when responding to the Tribunal to provide it with additional information to support his claims. In my view the applicant was given an appropriate opportunity to present his case, to make submissions on his grounds and to comment on adverse material sourced by the Tribunal during the course of the hearing.

Conclusion

The applicant has not demonstrated any jurisdictional error, or lack of procedural fairness. The application is dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Associate: S Haysom

Date: 14 March 2005