SZDQU v Minister for Immigration

[2004] FMCA 1063

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDQU v MINISTER FOR IMMIGRATION [2004] FMCA 1063

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the Applicant a protection visa – Applicant a citizen of Sri Lanka – where RRT not satisfied that the Applicant was a credible witness – assessment of credibility not subject of judicial review – use of country information.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A, 475A

Minister for Immigration & Multicultural Affairs v Durairajasingham (2000) 74 ALJR 405; 168 ALR 407

Applicant: SZDQU

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG 1560 of 2004

Delivered on: 17 December 2004

Delivered at: Sydney South

Hearing date: 17 December 2004

Judgment of: Scarlett FM

REPRESENTATION

Applicant: In person

Counsel for the Respondent: Ms Morgan

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The Applicant is to pay the Respondent’s costs in the sum of $4,000.00. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1560 of 2004

SZDQU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The application this morning is an application for review of a decision of the Refugee Review Tribunal that was handed down on 11 May this year. 

2. The decision by the Tribunal was a decision affirming a decision of a delegate of the Minister not to grant a protection visa to the Applicant.  On 26 May 2004 the Applicant lodged his application at this Court. 

3. There are two grounds of the application.  First, that the Tribunal fell into jurisdictional error by finding that the Applicant's claim that the LTTE were seeking to harm him was not credible.  The second ground relates to an allegation of a denial of procedural fairness and jurisdictional error.  The particulars are that the Tribunal relied on certain country information about Sri Lanka but the Tribunal did not put the country information to the Applicant and give him an opportunity to comment.

Background

1. The Applicant is a citizen of Sri Lanka who is 44 years of age.  He was born in Colombo.  He speaks, reads and writes Singhalese and English and he also speaks Japanese.  He holds a diploma in medical laboratory technology. Between 1992 and 2003 the Applicant worked as a laboratory manager in the Western Infirmary Hospital in Colombo.  He arrived in Australia on a visitor's visa on 3 October 2003.  He travelled to this country lawfully on a valid passport issued by the government in Sri Lanka.  He is a married man with three children aged 15, 8 and 5.

2. After he arrived in Australia he applied for a protection visa on

   
   

   13 November 2003.  In that visa he claimed a fear of persecution for a convention reason, in that he feared for his life as a result of actions by insurgents in Sri Lanka.  The insurgents concerned are known as the Tamil Tigers and are members of an organisation called the LTTE. 

3. The circumstances which prompted the Applicant to seek protection in this country arose from the murder of a senior police officer named Sunil Thaboew.  Inspector Thaboew worked in a special police unit dealing with Tamil terrorists.  He was the chief of police intelligence in an area of Sri Lanka called Dehiwala.

4. The Applicant had conducted his own laboratory for a while in Dehiwala and had lived there for a number of years. The Applicant came to be associated with Inspector Thaboew through his work in the laboratory.  Inspector Thaboew would attend the laboratory where the Applicant worked to have various tests performed.  It was as a result of his visits to the laboratory Inspector Thaboew became friendly with the Applicant.

5. In the year 2003 Inspector Thaboew had become involved with an informant called Madan. On one occasion Inspector Thaboew introduced Madan to the Applicant at the Applicant's laboratory. He had brought blood samples to the laboratory for the Applicant to examine.  The Applicant says that Inspector Thaboew told him that the man, Madan, was a former member of the LTTE who was acting as an informant. Unfortunately Madan was a double agent.  On 23 June 2003 Madan murdered Inspector Thaboew by shooting him. The Applicant says that this crime was a terrible blow to him.  He said that he realised that this would bring a change to his life and the life of his family.  He said that he and his family were contacted by people who told him not to give any more information to the police about Tamils and not to cooperate with the police or that would lead to his own death.

6. He said that terrorists had tried to find him at nights but he managed to escape and went into hiding.  He said he knew that the LTTE was a ruthless organisation and realised he could not escape from them.  He said that he had no option but to leave his home suddenly to escape the Tamil Tigers.  He said that from July in 2003 he went into hiding in the Chilaw area. He said his wife has been threatened since he left Sri Lanka and he fears harm by reason of his imputed political opinion of opposition to the LTTE.

7. A delegate of the Minister refused his application for a protection visa.  The Applicant then sought a review of that decision by the Refugee Review Tribunal.  He attended a hearing of the tribunal on Tuesday, 13th April this year.  He was not legally represented because as he said he did not have the money to pay a lawyer or a migration agent.  He had the services of an interpreter.  He told his story to the Refugee Review Tribunal and the tribunal member asked him a lot of questions.  He said that he answered those questions and he had also submitted some newspaper articles and letters to the tribunal.  He believes that the tribunal member heard his evidence and read the material which he submitted.

8. Unfortunately despite his evidence and his documents showing that the Tamil Tigers were targeting police informants, the Refugee Review Tribunal did not accept his evidence on a number of critical points.  The tribunal member, when assessing the Applicant's credibility, said, "It is reasonable that applicants whose claims are plausible and credible should, unless there are good reasons not to do so, be given the benefit of the doubt".  The tribunal member went on to say, "A decision maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out.  It is clear that the tribunal is not required to accept uncritically all claims made by applicants". 

9. There were a number of critical areas where the tribunal did not accept the Applicant's evidence.  On page 92 of the court book the tribunal did not find the Applicant's claims regarding the nature of his relationship with Inspector Thaboew to be credible.  On page 93 of the court book the tribunal did not find that it was credible that the Applicant said he was so fearful of being killed by the LTTE that he had to go into hiding.  The tribunal member said, "Even if it accepts that he had some limited professional contact with him", meaning Inspector Thaboew, "it finds it implausible that the LTTE would seek to harm him for this reason".  The tribunal went on to say, "The Applicant has provided no rational reason as to why the LTTE would have any adverse interest in him simply because he carried out laboratory tests for Chief Thaboew".

10. The tribunal noted that Inspector Thaboew was killed on 23 June 2003 but the Applicant did not leave the country until 2 October.  The tribunal noted that the Applicant was in hiding for three months which enabled him to avoid the LTTE.  The tribunal did point out that the Applicant gave evidence that he continued to work at the same place of employment until a few days before he left the country.  The tribunal summarised its views on credibility by making these three points on page 94 of the court book:  "The tribunal is not satisfied that the Applicant had any sort of close personal relationship with Chief Thaboew.  The tribunal also finds the Applicant's claim that he was being sought by the LTTE for harm because of any professional contact with Chief Thaboew to be lacking in credibility.  The tribunal finds the Applicant's claim that he was in hiding to lack credibility.  On the contrary, he continued to go to work daily". 

11. As a result the tribunal did not accept the Applicant's evidence.  On page 95 in the second paragraph the tribunal member noted that she had pointed out the tribunal's concerns to the Applicant at the conclusion of the hearing.  The tribunal member said that she had, "Noted the overall implausibility of his claims".  The tribunal went on to make a surprisingly strong criticism of the Applicant's credibility in these words:  "Considering the Applicant's mendacity on not only the essential elements of his claim, but other aspects of his claims discussed above, the tribunal finds that the claims of harm and threats of harm by the LTTE to be a fabrication".  The tribunal was not satisfied that the Applicant had a real chance of being persecuted for a convention reason in Sri Lanka and was not satisfied that the Applicant's fear of persecution for a convention reason was well founded.

12. The tribunal affirmed the decision not to grant the Applicant a protection visa. 

13. I turn now to the Applicant's application under the Judiciary Act for Review.  As I said, the Applicant first claimed that the tribunal fell into jurisdictional error in making an adverse finding on his credibility.  The fact is that a finding as to credibility is a question of fact not of law. As Ms Morgan of counsel who appeared for the Respondent pointed out in her written submission, a finding on credibility cannot be a jurisdictional error.  Ms Morgan referred the Court to the decision of McHugh J in the case of Minister for Immigration & Multicultural Affairs ex parte Durairajasingham. The citation is (2000) 74 ALJR 405, 168 ALR 407 at paragraph 67.

14. Certainly the applicant expressed the view that the tribunal was in error in not accepting his evidence.  He asserted his truthfulness and the fact that the tribunal was wrong to find against him.  That is, of course, a question of fact and the assessment of credibility of a witness is the function of the decision maker and not part of the role of a Court conducting a judicial review.  I reiterate that the Federal Magistrates Court conducts a judicial review of decisions of the Refugee Review Tribunal and not a merits review. 

15. It is not the function of the Court to consider the factual evidence again and substitute its own view of the evidence for that view reached by the decision maker.  It is not appropriate for the Court to form a view favourable to the Applicant's evidence and substitute that view of the evidence for the view given by the tribunal.

16. As long as the finding made by the decision maker was open to be made on the evidence before the tribunal, that finding must remain unchallenged.  Accordingly there is no jurisdictional error set out in the Applicant's first ground.   In respect of the Applicant's second ground, the Applicant says, "The tribunal relied on country information in its decision.  The country information is set out at pp 11 to 12, the tribunal did not put the country information to the Applicant and give him an opportunity to comment. In the circumstances of the case this constituted a denial of procedural fairness and jurisdictional error". 

17. I have examined the country information relied on by the tribunal.  It can be found at pp 90 to 91 of the court book.  There are in effect four separate pieces of country information.  Three of them relate to the LTTE in general.  They refer to the fact that the LTTE is regarded as the world's most ruthless terrorist group or organisations. They commit atrocities against unarmed innocent people.   They have planted well trained spies to collect information in Colombo itself.  They are able to execute attacks in Colombo. 

18. All of this country information supports the Applicant's view of the LTTE as Ms Morgan pointed out.  It is general information about the LTTE and certainly does not refer to the applicant at all.  The final police of country information refers to a report dated 15 July 2003 about the assassination of police intelligence chief Mr Sunil Thaboew.  The report refers to the murder of Mr Thaboew on 23 June 2003.  The report refers to the fact that he was murdered by his own informant whom the Applicant knew as a man called Madan.  The report confirms that Madan, "Played the double game", meaning that the man acted as a double agent.

19. The report also refers to a directive by the LTTE to murder government intelligence officers.  The Applicant agreed in Court that the matters set out in that piece of country information were in accordance with the facts as he knew them.  It is apparent that the country information relied on by the tribunal or at least considered by the tribunal supported the Applicant's claims even if it did not refer to him directly.  

20. Section 424A of the Migration Act provides that the tribunal must give particulars of any information that the tribunal considers would be the reason or part of the reason for affirming the decision that is under review.  The exception to that is in sub-section 3 which provides that the section does not apply to information that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member. 

21. To my mind three of the four pieces of country information fall into the category set out in paragraph (a) of sub-section (3).  The fourth piece which relates specifically to the murder of Inspector Thaboew is in fact specifically about another person as set out in sub-section (3)(a).  It is not, however, information that would come under sub-section (1)(a) as being the reason or a part of the reason for affirming the decision that is under review.  As Ms Morgan pointed out, the information not only stated the facts as the Applicant knew them but supported his case.  Where the tribunal found against the Applicant was not as a result of the country information but as a result of the tribunal hearing but not accepting his evidence.  It remains that it is the task of the Applicant to persuade the tribunal of the facts which set out his grounds.  It is the tribunal and not the Court that makes an assessment of the Applicant's credibility.  Whilst the Applicant appeared today as a pleasant and respectable person who clearly missed his wife and children, the tribunal's assessment of his credibility as a witness was clearly less favourable than the impression that he gave to the Court today.

22. Unfortunately for the Applicant the determination of credibility which is what the decision was all about is a determination for the decision maker at the Refugee Review Tribunal and not for the Court conducting a judicial review.  As the Applicant is unrepresented I have examined the material in the court book and I have asked questions today about the way in which the tribunal conducted the hearing.  I am satisfied that the material in the court book contains evidence upon which it was open to the tribunal member to arrive at the conclusions that she did and I am satisfied that the tribunal hearing was conducted in a way that discloses no procedural unfairness.  There is no jurisdictional error disclosed, there is no evidence of a denial of procedural unfairness, there is no reviewable error and I must regretfully dismiss the application.

I certify that the preceding twenty-five, (25) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V Lee

Date:  28 January 2005