SZSOA v Minister for Immigration & Border Proteciton

[2013] FCCA 2062

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSOA v MINISTER FOR IMMIGRATION & BORDER PROTECITON & ANOR [2013] FCCA 2062

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal ignored relevant country information – whether the Refugee Review Tribunal made an erroneous and irrational finding – whether the Refugee Review Tribunal proper reasons for certain findings – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 91R, 411, 422B, 424A, 425, 474
Migration Regulations 1994 (Cth), reg.2.01

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29

Applicant: SZSOA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 171 of 2013

Judgment of: Judge Emmett

Hearing date: 3 December 2013

Date of Last Submission: 3 December 2013

Delivered at: Sydney

Delivered on: 3 December 2013

REPRESENTATION

The applicant appeared in person and had the assistance of a Spanish interpreter.

Solicitor for the Respondents: Mr Richard Baird
(Clayton Utz)

FEDERAL CIRCUIT
COURT OF AUSTRALIA
AT SYDNEY

SYG 171 of 2013

SZSOA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 19 December 2012 and handed down on 20 December 2013 (“the RRT”).

2. The applicant claims to be a citizen of Colombia and to fear harm from a paramilitary group, the Black Eagles, because of his attempt to make a documentary in 2006 of alleged murders of homosexuals in Cuidad Bolivar, Botoga, Colombia.

3. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a protection visa, a summary of the decision of a delegate of the first respondent (“the Delegate”) and a summary of the RRT’s review and decision.

Background

1. The applicant arrived in Australia on 2 March 2007, having departed legally from Colombia on a passport issued in his own name and a subclass 570 (Independent ELICOS Sector) visa issued on 15 February 2007. The applicant was subsequently granted a series of visas including a further subclass 570, two subclass 572 (Vocational Education and Training Sector) visas and several Bridging visas.

2. On 17 January 2012, the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”).

3. On 14 June 2012, the Delegate refused the applicant’s application for a protection visa.

4. On 11 July 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.

5. On 19 December 2012, the RRT affirmed the decision of the Delegate not to grant a protection visa.

6. On 31 January 2013, the applicant filed an application in this Court seeking judicial review of the RRT’s decision.

Legislative framework

1. Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

3. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

4. Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.

5. Section 36(2)(aa) of the Act provides that:

   “(2)  A criterion for a protection visa is that the Applicant for the visa is:

   (aa)  a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”

6. Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.

7. The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.424A and 425, which provide that:

   “424A  Information and invitation given in writing by Tribunal

   (1)  Subject to subsections (2A) and (3), the Tribunal must:

   (a)  give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.

   425  Tribunal must invite Applicant to appear

   (1)  The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

8. Section 424AA of the Act permits the RRT to give orally to an applicant clear particulars of any information that the RRT considers would be the reason or part of the reason for affirming the decision under review. The RRT must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The RRT must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.

9. Under s.474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

10. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision. (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The applicant’s application for a protection visa

1. The applicant provided a statement in support of his protection visa application in which he stated the following:

   a)The applicant was threatened and harmed by paramilitary groups while undertaking an investigative report on crimes against sexual minorities by paramilitary forces.

   b)In November 2006, whilst the applicant was interviewing witnesses, four men armed with pistols forced the applicant into a car, hit his head and threatened to kill him unless he handed over all the video tapes he had made.

   c)The applicant fears that if he was to return to Colombia he would be pursued by paramilitary and guerrilla groups, in particular the “Black Eagles”. The Black Eagles are “a right-wing paramilitary group.” The applicant fears that the Black Eagles may harm or mistreat him because they “have been growing and causing more deaths.”

   d)If the applicant was to be harmed, the authorities could not protect him as there are not enough police to protect people. Moreover, his presence would expose people who know him to danger.

The Delegate’s decision

1. On 7 June 2012, the applicant attended an interview with the Delegate.

2. On 14 June 2012, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention and does not meet the alternative complementary protection criterion.

3. While the Delegate accepted that the applicant had suffered past harm in Colombia, the Delegate did not find the applicant to be credible, citing his travel history and delay in applying for a protection visa to be inconsistent with the actions of a person who had a genuine fear of persecution. Accordingly, the Delegate found that the applicant’s fear of persecution was not well-founded.

The RRT’s review and decision

1. On 11 July 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.

2. The applicant provided further further documents in support of his review application, including a letter from his mother, a pamphlet on “Black Eagles” letterhead, and a statement setting out the applicant’s claims and country information in relation to threats made by the Black Eagles. Further, after the hearing, the applicant provided a medical certificate in relation to a scar on head that he claimed was a result of an injury from the Black Eagles.

3. On 24 October 2012, the RRT wrote to the applicant informing him that the RRT had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 30 November 2012 to give oral evidence and present arguments.

4. On 30 November 2012, the applicant attended the RRT hearing and gave evidence.

5. The RRT explored in significant detail the applicant’s claims and put to him concerns it had about his evidence, noting his responses. The RRT also identified with great particularity the country information to which it had regard in considering the applicant’s claims for protection. 

6. The RRT summarised the claims the applicant made before it as follows:

   a)The applicant claimed to fear harm on return to Colombia due to his involvement in documentary film making in November 2006 regarding the murders of homosexuals, prostitutes and HIV sufferers.

   b)The applicant claimed that before filing of interviews for the documentaries could commence, he and his crew were attacked by the Black Eagles. The Black Eagles took the lighting equipment and existing video, and warned the applicant and his partner not to continue with the documentary. The applicant was then hit on the head and needed to attend a medical clinic.

   c)The applicant claimed that following this incident, he received multiple threats and was given two months to leave Colombia or else his family would be harmed. He claimed that his partner disappeared in 2007 and that his partner’s contact, a bar owner in Bogota, was murdered in the same year.

   d)The applicant claimed his mother received threats in 2006 and again in November 2011 as to the applicant’s whereabouts. The applicant provided to the RRT a letter from his mother, stating that she was stopped in November 2011 and asked about the applicant’s whereabouts. The letter stated that she was yelled at and her car hit when she tried to flee. She stated this to be the second time she had received such an approach but that she had not reported either incident for fear of retaliation.

   e)The applicant claimed at the hearing that the threats made to his mother in November 2011 led him to make further investigations, which led him in turn to discover that theatre groups in Ciudad Bolivar had been threatened by the Black Eagles. The applicant concluded these threats were made as a result of the Black Eagles discovering that he was investigating them, and that consequently he would be at risk should he return to Colombia.

7. The RRT found that the applicant was not a credible witness.

8. The RRT noted the applicant’s claim to fear harm on return to Columbia due to his involvement in making a documentary in November 2006 regarding the murders of homosexuals, prostitutes and HIV sufferers in the Ciudad Bolivar district of Bogota, Colombia. The applicant claimed that about 15 homosexuals were killed. The RRT put to applicant that there are no reports of homosexuals or prostitutes being killed in Ciudad Bolivar in 2006 and that if there had been killings as claimed, then it would have been reported.

9. In considering the high level of reporting of crimes against homosexuals and the fact that the Colombia Diversa report does not indicate that that there were more than eight murders of homosexuals in 2006-2007, the RRT did not accept that the murders took place as alleged by the applicant. Accordingly, the RRT did not accept the applicant’s claim to have made a documentary about the murders or to have been attacked or threatened by the Black Eagles.

10. The RRT did not accept that the applicant’s mother was threatened in 2006 or in 2011, after the applicant left Colombia.

11. The RRT did not accept that the applicant would be harmed by the Black Eagles or any other group or person if he returned to Colombia.

12. In addition to the RRT’s findings about the applicant’s credibility, it also found the applicant’s claims to be implausible.

13. The RRT noted the applicant’s claim that his source for his documentary was a bar owner in Bogota, whom the applicant told the RRT had been murdered in 2007. The RRT noted that the applicant had told the Delegate that the bar owner had been killed in 2007. referred the applicant to a news report that a man with the same name as the applicant’s source and who also owned a bar in Bogota was murdered in 2006. The RRT did not accept that there were two men with the same name, who both owned bars in Bogota, and who were murdered within a year of each other. As such, the RRT did not accept that the bar owner was a source of the applicant’s story.

14. The RRT found the applicant’s claim with respect to his treatment from the Black Eagles to be “implausible.” The RRT found that in light of the evidence of the ruthlessness of the Black Eagles, it “defied belief” that when they attacked him, they allowed him to keep files on his computer, his wallet, and allowed him two months to leave the country. The RRT noted that the applicant did not in fact depart for four months, during which he did not come to any harm.

15. The RRT did not accept that the applicant was in fear of his life following the claimed attack from the Black Eagles in light of the applicant  not taking precautions to protect himself, such as going into hiding or moving house.

16. The RRT noted the letter from the applicant’s mother in which she claimed that she had been threatened in November 2011. The RRT found that the fact that the mother wrote the letter one year after the event did not substantiate the claim that she had been threatened. The RRT also noted that the applicant had not given a copy of the letter to the Delegate even though the applicant had the letter before he lodged his protection visa application. .Accordingly, the RRT gave no weight to the letter in support of the applicant’s claims that his mother had been threatened by the Black Eagles as to his whereabouts.

17. The RRT found the applicant’s explanation for why his mother purportedly received threats to be “absurd”.

18. The RRT accepted that the applicant had a scar on his head. However, in light of the RRT’s adverse credibility findings, the RRT did not accept that the medical report, prepared in 2012, supported the applicant’s claim to have been assaulted by the Black Eagles five years earlier.  

19. Ultimately, the RRT rejected the applicant’s claims to have been involved in a documentary, being threatened and beaten by the Black Eagles, and that his mother had received threats regarding his whereabouts following his departure.

20. Accordingly the RRT found that the applicant did not have a well-founded fear of persecution for a Convention reason if he was to return to Columbia and did not meet the definition of a refugee.

21. The RRT also considered whether the applicant met the alternative criteria for complementary protection under s.36(2)(aa) of the Act and concluded that they did not. The RRT found that there was no credible evidence before it that because the applicant made a documentary detailing the deaths of homosexuals and prostitutes in 2006 that he would be persecuted by the Black Eagles. Accordingly, the RRT found that there are not substantial reasons for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, Colombia, there is a real risk that the applicant would suffer significant harm.

22. Having determined that the applicant did not satisfy the refugee criterion in s.36(2)(a) of the Act, or the alternative criterion in s.36(2)(aa) of the Act, the RRT affirmed the decision under review.

The proceeding before this Court

1. The applicant was unrepresented before this Court, although had the assistance of a Spanish interpreter. Whilst the applicant had the assistance of an interpreter, it was plain that no such interpreter was required and at no time did he use her services.

2. On 18 April 2013, the applicant attended a directions hearing before me. I explained to the applicant that this Court has no power to interfere with the decision of the RRT, unless the Court is satisfied that the RRT’s decision is affected by a mistake going to the jurisdiction of the RRT. I also explained to the applicant that the grounds of the application, filed on 31 January 2013, made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court. The applicant confirmed that he wished to continue with the application for judicial review.

3. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the RRT hearing, as well as submissions in support.

4. At the directions hearing, the applicant was referred to the Court’s Legal Advice Scheme for free legal advice. The applicant has participated in the Court’s Legal Advice Scheme and received free legal advice. The applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.

1. On 13 June 2013, the applicant filed an amended application. The amended application identified the following grounds:

   “Ground

   1. The Tribunal failed by ignoring relevant material for the finding.

   Court Book, RRT Decision, Page 236

   (158) The Tribunal does not consider the applicant’s claim to be credible for the following reasons.

   No evidence of murders of LGBT people in Ciudad Bolivar in 2006

   Documents the Tribunal ignored in this finding:

   (Executive Summary 2006-2007 Report), Court Book, Page 135-138.

   Despite the number of registered cases, it is feared that a high number of undocumented cases of LGBT human rights violations is present in Colombia. This is explained by a low level of denunciations and by an absence of protocols and statistical registries that include sexual orientation and gender identity in the studies performed by government and nongovernment state entities that gather information concerning human rights.

   (Paramilitaries threaten Bogota’s peripheries), Court Book, Page 132, Paragraph #6.

   The situation is developing along similar lines in other cities like Medellin, Barranquilla and Cartagena. There were 286 killings in 2005 and 162 in 2006 but the numbers are growing once again. The Colombian Army has been accused of collaborating with the paramilitaries in Medellin and a large section of the police force have links with the drug trade. The brother of the current police chief of Colombia is in prison in Europe on drug trade charges.

   Ground

   2. The Tribunal made an erroneous finding,

   And irrationality for the finding

   Court Book, RRT Decision, Page 238.

   (170) It is impossible that that the investigators in November 2011 would cause threats to theatre groups in August 2011. There are over one million people in Ciudad Bolivar. The applicant has been in Australia for nearly five years” (sic) The Tribunal does not accept that the threats against the Theatre groups in Bogota had anything to do with the applicant. The Tribunal does not accept the applicant’s mother was threatened in November 2011.

   My Reasons

   Court Book, RRT Decision, 220.

   (57) The applicant stated that when he left Colombia, it was because of the threats against him. He did not receive any threats for a period of four years. After his mother received the last threat, he started to do some research into why they might be threatening him again. He found out that 12 theatre companies had ben threated in some areas ion Bogota and Ciudad Boliva” Before that, nothing serious happened in Ciudad Boliovar. He was led to believe that the paramilitaries think that he is making enquiries against him and that is why they are threatening him again.

   Court Book, Page 199, Paragraph 6.

   Own Statement.

   I believe the black eagles began to threaten me again, for events that occurred in 2011, which may have motivated investigations against them and that they can also believe that I’m still in Colombia

   3. The Tribunal failed to give any or any proper, reasons for the finding

   The Tribunal does not accept

   -    My Mother’s statement

   -    Medical certificated;

   -    Threats”

Ground 1

1. Ground 1 asserts that the RRT ignored relevant material in making its adverse credibility findings and finding that there was no evidence of murders of homosexuals in Cuidad Bolivar, Bogota, Colombia, in 2006.

2. In support, the applicant referred to the RRT’s finding that;

   “Although other murders of homosexuals in Colombia are widely reported, particularly eight murders of homosexuals which took place mainly in Chapinero in early 2006, there are no reports of the murders in Cuidad Bolivar (15 of which the applicant claimed were murders of homosexuals) which the applicant claimed were the subject of his documentary in 2006. The Amnesty International report to which the applicant refers in the document provided after the hearing is a report into violence against women during the conflict in Colombia from 2004 and predates the events which he claims took place. Additionally, at the hearing the applicant was not aware what Amnesty International report was being referred to in the purported storyboard.”

3. The applicant submitted that there was country information before the RRT that supported his claims and that the RRT had erroneously ignored that information in finding that there were no reports of murders in Cuidad Bolivar in 2006.

4. The country information referred to by the applicant in support of his submissions is as follows:

   “(Paramilitaries threaten Bogota’s peripheries), Court Book, Page 132, Paragraph #6.

   
   

   The situation is developing along similar lines in other cities like Medellin, Barranquilla and Cartagena. There were 286 killings in 2005 and 162 in 2006 but the numbers are growing once again. The Colombian Army has been accused of collaborating with the paramilitaries in Medellin and a large section of the police force have links with the drug trade. The brother of the current police chief of Colombia is in prison in Europe on drug trade charges.

   (Executive Summary 2006-2007 Report), Court Book, Page 135-138.

   
   

   Despite the number of registered cases, it is feared that a high number of undocumented cases of LGBT human rights violations is present in Colombia. This is explained by a low level of denunciations and by an absence of protocols and statistical registries that include sexual orientation and gender identity in the studies performed by government and nongovernment state entities that gather information concerning human rights.”

5. The first piece of country information relied upon by the applicant appears to refer to murders in Medellin, Barraquilla and Cartagena and not in Cuidad Bolivar.

6. The second piece of country information referred to a fear of a high number of undocumented cases of sexual minorities and human rights violations in Colombia

7. However, the RRT noted that there was a high level of reporting of crimes against homosexuals in Colombia but that country information in a Colombia Diversa report indicated that there were not more than eight homosexual murders in Bogota in 2006-7. In the circumstances, the RRT rejected the applicant’s claim to have attempted to make a documentary about the murders of 15 homosexuals in 2006.

8. The RRT noted that it put to the applicant that there were no reports of homosexuals and prostitutes being killed in Cuidad Bolivar in 2006 and that, had there been 15 murders as claimed by the applicant, it would have been reported. The RRT noted that in June 2006, there were reports of eight murders of homosexuals in the Chapinero area of Bogota, and asked why there were no reports of 30 killing in Cuidad Bolivar. The RRT noted the applicant’s claim that between 25 to 30 people had been killed and that approximately 15 were homosexual. The RRT noted the applicant’s response that the non-homosexual murders were reported and that between 2006 and 2007 Colombia Diversa that 67 homosexual Colombians had been murdered but that they were not all from Bogota.

9. A fair reading of the RRT’s decision record makes clear that the RRT was aware that not all crimes were reported. However, having regard to the “high level of reporting of crimes against homosexuals in Colombia” and that the Colombia Diversa report did not indicate that there were more than eight murders of homosexuals in Bogota 2006-7, the RRT did not accept that the murders that the applicant claimed to have investigated had taken place.

10. Accordingly, the RRT rejected the applicant’s claim to have attempted to have made a documentary about the murder of 15 homosexuals in Cuidad Bolivar in 2006.

11. In the circumstances, the country information referred to by the applicant does not support the applicant’s claims of the existence of 15 murders of homosexuals in Cuidad Bolivar in 2006. Further, the country information identified by the applicant above was referred to by the RRT and discussed with the applicant at the hearing.

12. Otherwise, the RRT comprehensively rejected the applicant’s claims to have ever been attacked or threatened by the Black Eagles and did not accept that he would be harmed by the Black Eagles if he returned to Colombia. Further, the RRT did not accept that the applicant’s mother was threatened by the Black Eagles after the applicant left Colombia in 2006 or that she was threatened in 2011 as claimed.

13. The RRT did not give the applicant’s mother’s letter any weight in circumstances where the letter was written a year after she had been threatened in 2011 and it was not provided to the Delegate.

14. The RRT rejected threats sent to the applicant’s house in the form of leaflets as not being genuine. The leaflets did not mention the applicant and in the light of country information that the Black Eagles usually heralded their presence by distributing flyers to an entire community rather than directly delivering them to one person. Further, the RRT noted that similar threats were widely available in the Internet and that the applicant had high level IT skills.

15. The RRT also considered a medical certificate provided by the applicant after the hearing in relation to a medical examination in 2012 revealing a scar on the applicant’s head. However, in light of the RRT’s general concern about the applicant’s credibility, it did not accept that the scar was the result of an attack five years earlier at the hands of the Black Eagles.

16. The RRT’s findings were open to it on the materials and evidence before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the RRT (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

17. It is well established that the RRT is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the RRT have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

18. There was no transcript of the RRT hearing provided to this Court, nor did the applicant provide any evidence to this Court to suggest that the RRT’s decision record is not accurate. At the directions hearing on 18 April 2013 the applicant was given an opportunity to file a transcript of the RRT hearing. The applicant was also directed to give notice if he wished to rely on recordings of the hearing. However, no step was taken by the applicant to rely on any such evidence. In the circumstances, the Court accepts as accurate the RRT’s summary of the oral evidence given by the applicant and exchanges it had with the applicant at the RRT hearing. The Court is entitled to accept the RRT’s decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).

19. The function of the RRT is to respond to the case that the applicant advances (Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 405 per Kirby J; SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at [17] per Selway J; NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [58]-[60] per Black CJ, French and Selway JJ).

20. In the circumstances, ground 1 does not identify any jurisdictional error on the part of the RRT and appears more to be a disagreement with the findings and conclusions of the RRT. Such complaints invite merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

21. The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] by North, Lander and Katzmann JJ:

    “It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”

22. Accordingly, ground 1 is not made out.

Ground 2

1. Ground 2 asserts that the RRT made an erroneous and irrational finding.

2. In support of ground 2, the applicant referred to the following finding made by the RRT:

   “It is impossible that investigations in November 2011 would cause threats to theatre groups in August 2011. There are over one million people in Cuidad Bolivar. The applicant has been in Australia for nearly five years. The Tribunal does not accept that the applicant’s mother was threatened in November 2011.”

3. The applicant’s complaint appears to be that the RRT’s statement that “it is impossible that investigations in 2011 would cause threats to theatre groups in August 2011” misunderstood the applicant’s evidence and was used to reject the applicant’s claims.

4. However, in exploring the RRT’s concerns about purported threats received by the applicant’s mother in November 2011, the applicant claimed that after this mother was threatened in November 2011, he conducted further research and found out that theatre groups in Cuidad Bolivar had been threatened by the Black Eagles in August 2011. The RRT noted the applicant’s explanation that the Black Eagles must have thought that he was investigating them again and that was why they made threats against the theatre groups and his mother.

5. The RRT asked the applicant how threats against theatre companies led him to believe that the Black Eagles thought that he was investigating them again. The RRT noted the applicant’s response that it was all that he could think of and that he had problems in Cuidad Bolivar and was threatened in 2006, but that nothing had happened until the theatre groups were threatened in 2011.

6. The RRT noted that it was aware of threats made against theatre companies in Bogota by the Black Eagles but that it did not understand what this would have to do with a person who had been studying in Australia for the past five years. The RRT put to the applicant that there did not appear to be any connection between what the applicant had claimed happened to him in 2006 and the threats to the theatre groups in 2011. The RRT noted the applicant’s response that the Black Eagles had expanded since 2006.

7. The RRT also noted that the threats against the theatre groups took place in August 2011 which was three months before the applicant claimed that the threats were made against his mother in November 2011. The RRT noted that the applicant had not claimed to have begun his investigation until November 2011 and asked how he thought this had caused the threats earlier in time in August 2011. The RRT noted the applicant’s response that the Black Eagles threatened the theatre groups when they threatened him which made him believe that he was in some way related to a theatre group in Cuidad Bolivar. The RRT noted that there are many theatre groups in Cuidad Bolivar but that the applicant could not remember the name of the theatre group to which he was referring.

8. The RRT noted that it asked the applicant if he received the threats in 2011 why he did not apply for a protection visa until July 2012. The applicant responded that he was confused and took the time to decide what he might do.

9. In the circumstances, the RRT’s statement that “it is impossible that investigations in 2011 would cause threats to theatre groups in August 2011” is unremarkable. It was open to the RRT not to be satisfied by the applicant’s evidence in relation to the threats he said were received by his mother in November 2011 in circumstances where the applicant was seeking to link them to accepted threats against theatre groups in August 2011. It is clear the RRT put its concerns about that evidence to the applicant, explored the concerns with him and noted his responses.

10. In the circumstances, it was open to the RRT not to accept that the threats against the theatre groups in Botoga had anything to do with the applicant and not to accept that the applicant’s mother was threatened in November 2011 as claimed. Indeed, it was the RRT’s very task to assess the evidence and material before it and to make findings in in the light of that evidence. This it did.

11. The RRT was plainly aware of the applicant’s claims that he left Colombia because of threats against him; that he did not receive any further threats for a further four years; that, after his mother was threatened in November 2011, he started to research why he may be being threatened again; that he found out theatre companies in Botoga had been threatened although without serious incident; and, that he believed the Black Eagles were making inquiries against him.

12. As stated above, the RRT was not bound to accept the applicant’s claims uncritically.

13. The applicant has not identified why the RRT’s findings are so illogical or irrational as to be incapable of being made by a reasonable decision make (see: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1). No such irrationality is apparent on the face of the RRT’s decision record.

14. Accordingly, ground 2 is not made out.

Ground 3

1. Ground 3 asserts that the RRT failed to give proper reasons for rejecting the applicant’s claims about threats received by him and his mother, and for failing to put weight on his mother’s letter and his medical certificate.

2. In relation to the applicant’s claimed threats received by him, the RRT rejected his evidence, given that the applicant remained living in the same house and that his mother had not moved house until after six months after the applicant had moved to Australia. The RRT did not accept that the applicant would be in fear of his life, but take no precautions to protect himself, if the threats from the Black Eagles were genuine. The RRT noted that the applicant claimed that the Black Eagles had given him two months to leave, however, he did not leave until four months later.

3. The RRT put to the applicant that his credibility was in issue and that, if it did not accept that the 15 murders had not taken place as alleged, the applicant’s subsequent claims would be rejected.

4. The RRT also put to the applicant that the claimed threats against his mother were vague and did not make sense five years after he had left Colombia.

5. The RRT gave the applicant further time to provide further evidence to support his claims. Whilst the applicant did provide further evidence, it was not sufficient to meet the RRT’s expressed concerns.

6. As is clear from above in these Reasons, the RRT explored the applicant’s claims of threats from the Black Eagles in relation to himself and his mother in great detail and put its concerns to the applicant for comment.

7. Similarly, in relation to the applicant’s mother’s statement and the medical certificate, the RRT made clear its reasons for not placing weight on those documents. Those reasons are referred to above. Namely, that the applicant’s mother’s letter was not provided to the Delegate, even though the applicant claimed that she was threatened in November 2011 that was before he lodged his protection visa application; and, that the letter was written a year after the claimed threats.

8. In relation to the medical certificate, as stated above, the RRT accepted that the applicant had a scar on his head. However, in light of the RRT’s adverse credibility findings, the RRT did not accept that the examination by a doctor in 2012 sufficiently supported the applicant’s claim to have received a blow to the head from the Black Eagles five years earlier.

1. As stated above, the RRT’s findings were open to it on the evidence and material before it and for the reasons it gave.

2. The RRT’s subjective appraisals, thought processes and determinations, defects, gaps or lack of detail in an applicant’s evidence are not information that the RRT was required to put to the applicant for comment (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18] per Gleeson CJ, Gummow, Callinan Heydon and Crennan JJ; VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 at [14] per Finn and Stone JJ).

3. Further, it is well settled that the country information to which the RRT has regard and the weight it gives that information is a matter for the RRT (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

4. It is for an applicant to satisfy the RRT, being the relevant decision-maker, that the applicant meets the criteria for being a refugee. As stated in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]:

   “…The proceedings before the [RRT] are inquisitorial and the [RRT] is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The [RRT] must then decide whether that claim is made out.”

5. Section 65.1 of the Act mandates that if the RRT, as the relevant decision-maker, is not so satisfied the applicant must be refused a protection visa.

6. Accordingly, ground 3 is not made out

Other complaints

1. Following the completion of the submissions of the solicitor for the first respondent, the applicant raised a further complaint about the RRT’s findings.

2. The applicant submitted that the RRT rejected the threats made in leaflets that he claimed the Black Eagles sent to his mother’s house, because it ignored country evidence that disclosed that flyers could be delivered to one person rather than to an entire community.

3. The country information referred to by the applicant stated that the Black Eagles have “written and made personal threats against Union members, Councillors, Counsel and Defence attorneys as well as professors and journalists.”

4. The RRT noted that the applicant stated that his mother received such a leaflet at her home like any other letter. The RRT noted that there were similar flyers on the Internet but that the applicant stated that it was sent to his mother’s house. The RRT noted was this was not the method by which the Black Eagles ordinarily provided their leaflets and that they were generally distributed throughout an area. The RRT noted that it asked why the leaflet did not specifically mention the applicant if it was sent to his mother’s house and noted the applicant’s response that he did not know and that his mother had not reported it to the police.

5. In the circumstances it was open to the RRT to have regard to the country information before it that indicated that the Black Eagles would usually distribute flyers to an entire community rather than delivering it to one person. Further, the RRT placed weight on the availability of such material on the Internet and the applicant’s high-level of IT skills in finding that the leaflets were not genuine and giving them no weight.

6. That finding was open to the RRT on the evidence and material before it and for the reasons it gave. There is nothing to suggest that the RRT was not aware of the country information referred to by the applicant or that it had not taken it into account.

7. Accordingly, the applicant’s complaint in not made out.

Conclusion

1. A fair reading of the RRT’s decision record makes clear that the RRT understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The RRT put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The RRT identified independent country information to which it had regard. The RRT also put to the applicant independent country information before it and invited the applicant to comment upon it.

2. The RRT then made findings based on the evidence and material before it. Those findings of fact were open to the RRT on the evidence and material before it and for the reasons it gave. A fair reading of the RRT’s decision record makes clear that the RRT reached conclusions based on the findings made by it and to which it applied the correct law.

3. In the circumstances, the RRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The RRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding one hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  3 December 2013