S253 of 2003 v Minister for Immigration - [2004] FMCA 944

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S253 of 2003 v MINISTER FOR IMMIGRATION

[2004] FMCA 944

MIGRATION – Refugee – credibility – unreasonableness.

Migration Act 1958

Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437

Applicant:

S253 of 2003

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG1353 of 2004

Delivered on:

8 November 2004

Delivered at:

Sydney

Hearing date:

8 November 2004

Judgment of:

Nicholls FM

REPRESENTATION

Counsel for the Applicant:

NIL

Solicitors for the Applicant:

Mr. C. Jayawardena

Counsel for the Respondent:

Mr. T. Reilly

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application be dismissed.
That the applicant pay the respondent's costs set in the amount of $4500 pursuant to rule 21.02.2A of the Federal Magistrate Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1353 of 2004

APPLICANT S253 of 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

This is an application for review of a decision of the Refugee Review Tribunal made on 25 January 1999 to affirm a decision made on

19 June 1997 by a delegate of the respondent Minister to refuse a protection visa to the applicants.
The applicants are all Sri Lankan nationals of Singhalese ethnicity; the first named applicant appears to have first arrived in Australia on

31 August 1994, the first occasion. His wife and second son, the second and third named applicants, arrived in May 1996. The first named applicant claimed to be in fear of harm from the Separatist Liberation Tigers of Tamil Eelam [LTTE] because in 1989, for about a month, he had provided confidential information to the Sri Lankan police and army about LTTE activities in the area in which he lived. The second and third applicants had no separate claims.
In the application to this Court filed on 10 May 2004, the applicants assert exceeding of jurisdiction, errors of law and jurisdictional errors on the part of the Tribunal. In the application, no particulars are provided other than a reference to the Tribunal's finding on resettlement for the applicant within Sri Lanka. An affidavit filed in support by the first named applicant refers to factual information before the Tribunal.
At the hearing before me today the applicant was represented by Mr Jayawardena and was present, and I note had the assistance of an interpreter in the Singhalese language.
In an amended application prepared with the assistance of a legal adviser, five grounds are advanced. The first is that the Tribunal made a jurisdictional error by drawing conclusions where there is no evidence, and thus questioning the credibility of the applicant. I am referred to, by way of particulars, to Court Book 186, paragraph one and the quote:
“As I put to him in the course of the hearing before me, the Australian Department of Foreign Affairs and Trade had advised that an offence would have to be very serious to warrant the LTTE expanding its resources to chase after persons in Colombo.”
The applicant says that the Tribunal should have provided details of the information that was relied upon and drew conclusions where there was no evidence and thus questioned the credibility of the applicant. But as the extract from which the applicant quotes shows, the information which the Tribunal relied on, its substance, was put to the applicant. At Court Book 182.8 the Tribunal clearly states that it put this information to the applicant and the applicant responded to it. The applicant has not challenged this. The applicant has put nothing before this Court today, by way of evidence, to attack the Tribunal's version in its record of decision that it put these matters to the applicant in the way that it did. And it is very well settled that the Tribunal was entitled, as the primary decision maker, to make findings, including findings on credibility. There is no error demonstrated here, let alone jurisdictional error.
The second ground is that the Tribunal was Wednesbury Unreasonable in holding that the applicant was not able to provide certain information thus holding against him. By way of particulars I am referred to CB 185, paragraph one.
“I also accept that the applicant may have provided information to the police and the army while he was in Aluthwewa regarding people whom he saw in vehicles carrying weapons and firing that he had heard in the night.” “However, having regard to applicant's own evidence, I do not consider that he was privy to any confidential information regarding the activities of the LTTE and I do not think that the LTTE was looking for him as a result of his role in providing information to the authorities during the period of about one month that he spent in Aluthwewa ten years ago.”
The applicant complains of error on the part of the Tribunal in that it was highly unreasonable for the Tribunal to have held against the applicant on the basis that the applicant never said that he was privy to any confidential information. In my view, this is a clear misunderstanding of what the Tribunal did. The applicant claimed that he had provided information to the police and army about the LTTE sufficient to bring him to the notice of the LTTE and therefore cause fear of harm from the LTTE.
The Tribunal looked at the factual information provided by the applicant and I refer to Court Book 185.4:
“However, having regard to the applicant's own evidence:”
and found that it was not information of the type that could be categorised as “confidential” and therefore of the type that may be a concern to the LTTE. It then found that it did not accept that the LTTE was looking for him for divulging the type of information that the Tribunal had already accepted that he had provided to the authorities. Mr Jayawardena put to me that what the Tribunal had done was, in the first instance, to accept that the applicant had provided information to the police and the army and then characterised this information as having been fabricated. I do not read the Tribunal's record of decision and findings and reasons for decision in that way. What on a plain reading, the Tribunal was describing as having been fabricated was that the LTTE was looking for him as a result of his role, not that the Tribunal was saying that it was reversing its acceptance and describing the events that occurred in Aluthwewa as having been fabricated.
There is no error in what the Tribunal did nor is this so unreasonable in the circumstances of this case. The Tribunal had clearly put to the applicant the view that it was minded to take of the nature of the information that the applicant had provided.
The third ground is that the applicant complains of a failure to comply with s.424A of the Migration Act. The Tribunal decision was made on 25 January 1999. That section of the Act became operational on

10 August 2001, well after the Tribunal decision. Nor for that matter, is there any evidence before me today, other than the assertions and matters already mentioned and dealt with, to support or show that there has been any failure of common law procedural fairness in relation to the matters that are dealt with by s.424A if any such should apply.
The applicant also complains of jurisdictional error by way of breaches of s.430 (1) (c) and s.430 (1) (d) of the Migration Act. The particulars provided in support allege that the Tribunal was wrong in reaching the conclusion that the applicant and family could relocate to Colombo. The applicant says that:
“This forced relocation is unreasonable and unfair.”
The applicant, however, has not argued before me today how or why what the Tribunal did is unreasonable or unfair. On the material before me, the Tribunal correctly applied the principles in Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437. [see CB 182.1] The Tribunal did comply with the statutory requirements by setting out findings on material questions of fact and did refer to the evidence and material on which the findings of fact were based. The record of the Tribunal decision, which is not challenged by the applicant by way of evidence as to the relevant facts, shows that the Tribunal did put the issue of their safety in another part of Sri Lanka, namely Colombo. [see CB 182]
The Tribunal also put to the applicant the substance of other material available to it from the Department of Foreign Affairs and Trade concerning the LTTE and in particular at Court Book 182.7 then went on to put the substance of this advice to the applicant. According to the Tribunal's record of decision, which has not been challenged before me by the applicant, the applicant responded to the Tribunal and the Tribunal did consider what was put to it by the applicant, sought his views and made findings, which, on the material before it, it was entitled to do.
The fifth ground is that the applicants also complain that the Tribunal was "procedurally unreasonable" in making certain conclusions against the applicant. Refer to Court Book 185, paragraph one:
“I do not think that the LTTE was looking for him as a result of his role in providing information to the authorities during the period of about a month that he spent in Aluthwewa ten years ago. I consider that the applicant's claims in this regard have been fabricated to provide support for his application for a protection visa.”
Mr Jayawardena has put to me that this is a highly unfair and highly unreasonable conclusion by the Tribunal for alleging that the applicant had fabricated this information for his advantage and points to the fact that the applicant and his family moved to Aluthwewa in January 1989 and on 27 February 1989, the village was attacked by the LTTE. They killed 70 people, including ten infants, and that the applicant was compelled to leave the village and did not move out for any other reason.
Again, on the plain reading of the Tribunal's decision, it was not saying that the events claimed to have happened in and around the village of Aluthwewa in early 1989 were a fabrication. In fact, at Court Book 185.1 the Tribunal says:
“I accept that he was forced to leave after the incident in February 1989 when the LTTE massacred 70 villagers in Aluthwewa and the neighbouring village of Borawewa.”
This follows other information referred to by the Tribunal at Court Book 184.8 supporting this occurrence. What the Tribunal did say at 185.3 of the Court Book:
“I do not consider that he was privy to any confidential information regarding the activities of the LTTE and I do not accept that the LTTE was looking for him as a result of his role in providing information to the authorities during the period of about a month that he spent in (indistinct) ten years ago. I consider that the applicant's claims in this regard have been fabricated to provide support for his application for a protection visa.”
What the Tribunal was saying was that it was the applicant's claims in relation to him having provided information that was not of a type that would be of concern to the LTTE, and that the fabrication was that the LTTE was looking for him as result of his role. I stress the words, "applicant's claims in this regard" in the Tribunal's record of decision. The Tribunal was clearly not saying that the events in the village of Aluthwewa did not happen.
The applicant claims to fear persecution in Sri Lanka. I agree with Mr Reilly, the respondent Minister's counsel, that the applicants have never made the convention grounds clear. But, in any event, the Tribunal did look at the factual claims made by the first and second-named applicants. They are Singhalese. Their village was attacked by the LTTE in early 1989 and that they were threatened with death. The applicants were unsuccessful because of the view that the Tribunal took of the facts put by the first and second named applicants, and the view of the Tribunal also based on information available to it, the substance of which was put to the applicant.
The Tribunal found that the applicant's role in providing information was not such that the LTTE would look for him ten years later. The Tribunal found that the family, in any event, could reasonably relocate to Colombo and that in fact the first named applicant had returned to Sri Lanka in 1992 and 1995 at times after the events complained of, which occurred in 1989.
The Tribunal made findings of fact, including findings on credibility. While the applicant disagrees with these findings, there is no evidence before me to show that that the Tribunal was not entitled to so make these findings. It performed its function as the primary decision maker “par excellance”. I can find no error of law and therefore the application must be dismissed.

RECORDED : NOT TRANSCRIBED

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: Wagma Aziza

Date: 30 November 2004