VEAT v Minister for Immigration
[2004] FMCA 126
•10 March 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VEAT v MINISTER FOR IMMIGRATION | [2004] FMCA 126 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – whether Tribunal made error of law – credibility of applicant – what if I am wrong analysis. |
Migration Act 1958 (Cth), s.474
Kamal v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 818
Minister for Immigration and Multicultural and Indigenous Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration and Multicultural and Indigenous Affairs v Rajalingam (1999) FCA 719
NAMM v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 32
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Raza v for Immigration and Multicultural and Indigenous Affairs (2002) FCA 350
W148/00A v Minister for Immigration and Multicultural and Indigenous Affairs (2001) FCA 679
| Applicant: | VEAT of 2002 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 806 of 2002 |
| Delivered on: | 10 March 2004 |
| Delivered at: | Melbourne |
| Hearing date: | 13 March 2003 |
| Judgment of: | Connolly FM |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Krohn |
| Solicitors for the Applicant: | Ambi Associates |
| Counsel for the Respondent: | Mr W. Mosley |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
THAT the application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 806 of 2002
| VEAT of 2002 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This judgment arises from an application filed by the applicant on
4 July 2002 seeking judicial review of the decision of the Refugee Review Tribunal on 16 May 2002 to affirm the decision of the delegate of the Minister of Immigration and Multicultural Affairs to refuse to grant a protection (class XA) visa.
Background and summary of proceedings
The applicant is a citizen of Sri Lanka. He came to Australia on
4 March 2000 and lodged an application for a protection (class XA) visa (sub-class 866) with the Department of Immigration and Multicultural Affairs in accordance with the Migration Act 1958 (Cth) (“the Act”) on 3 April 2000. The applicant claimed that he feared persecution arising from harassment by the Sri Lankan security forces. The applicant claimed that the security forces believed him to have involvement with the LTTE (the Liberation Tigers of Tamil Eelam). The applicant further claimed that supporters of the People’s Alliance (PA) government party wanted to kill him due to his involvement with the United National Party (UNP).
On 2 May 2000, a delegate of the Minister of Immigration and Multicultural Affairs refused to grant the protection (class XA) visa; the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for review of that decision on 5 June 2000. In the decision made by the Tribunal on 16 May 2002, the Tribunal affirmed the decision of the delegate not to grant the protection (class XA) visa.
On 4 July 2002, the applicant lodged an application in the Federal Court of Australia, being V422/2002, pursuant to s.39B of the Judiciary Act 1903 (Cth), for review of the Tribunal’s decision.
On 6 August 2002, by order of Kenny J of the Federal Court of Australia, the matter was transferred to the Federal Magistrates Court pursuant to s.32AB of the Federal Court of Australia Act 1976 (Cth) and Order 82 of the Federal Court Rules 1979 (Cth). On 30 August 2002 a court book was filed. On 9 October 2002, the applicant lodged an amended application, seeking orders that the decision of the Tribunal be quashed or remitted to the Tribunal. The applicant stated that he sought relief on the grounds that the Tribunal’s decision was affected by an error of law; specifically that the decision was based on evidence that was not open before it, the Tribunal failed to take into account relevant matters and the Tribunal failed to consider the consequences if the decision was wrong.
On 16 October 2002 the applicant’s contentions of fact and law were filed in the Federal Magistrates Court. On 16 October 2002 directions were made by Deputy Registrar Efthim; the respondent’s contentions of fact and law were filed on 4 November 2002 in accordance with these directions.
The law
Following the decision of the High Court in Plaintiff S157/2002 Commonwealth of Australia (2003) 195 ALR 24 a Tribunal decision would be reviewable if it were to be established that the Tribunal had exceeded its jurisdiction or constructively failed to exercise its jurisdiction. Section 474 of the Act does not exclude consideration by the Court of decisions which involve a failure to exercise jurisdiction or which involve an excessive jurisdiction as such decisions are not decisions made under the Act for the purposes of section 474. Section 474 does not apply to decisions which involve jurisdictional error whatever the scope or extent of the jurisdictional error; see for example MIMA v Yusef (2001) 206 CLR 323 at 351.
However I am satisfied that there was no material before the Tribunal which warrants a finding or conclusion of actual bias, jurisdictional error or breach of procedural fairness. The applicant was unsuccessful, in essence because the Tribunal simply did not believe him. The High Court in Re MIMA; Ex parte Durairajasingham (2000) 168 ALR 407 held:
“A finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why the particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set reasons why it accepted or rejected individual pieces of evidence.”
The Full Federal Court in W148/00A v MIMA (2001) FCA 679 per Tamberlin and RD Nicholson JJ said:
“A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding.”
Conclusions and findings
Mr Krohn, counsel for the applicant, in his submission to me argued the determination by the Tribunal that “the fact that the Tribunal had to prompt him to recall what should have been a significant claim gives the Tribunal further cause to disbelieve the applicant” was a determination that was not open to the Tribunal on the basis of what occurred at the hearing. I do not accept that proposition. The Tribunal found there were many inconsistencies in the applicant’s evidence. The Tribunal made many findings against the credibility of the applicant such that it concluded at the end of its reasoning process that he had fabricated his claims to have been persecuted in order to provide a basis for claiming refugee status (p. 91 CB).
The Tribunal found that there were differences between the evidence that the applicant gave at the hearing and the matters that were contained in his earlier statement in support of his application for the protection visa (p. 27 CB). The applicant in his statement said at paragraph 5 (p. 28 CB):
“In the aftermath of the Western Province Provincial Council Elections held in 1998, the security forces stormed my house and took me for questioning about my involvement with the terrorist group (LTTE). Although I have Tamil contacts for business purposes, I have nothing to do with the LTTE. In the police cell they kept me for three days. During my detention I was subjected to torturous campaign by the security forces for no reasons. My cousin brother Mr. Michael Perera bribed the high officer and took me out of the cell on condition of reporting once a week after three long days.”
In fact the election was held in April 1999 not 1998. But the essence of the claim in the statement is that the police stormed his house because of suggested LTTE involvement whereas at the hearing he changed his evidence as to both the year of his detention and the manner of his arrest. At the hearing he was given an opportunity to explain to the Tribunal the reasons for his arrest and the way in which he was arrested. His evidence was that he was arrested on a false pretext as a result of a complaint that he had destroyed the other party’s posters (the PA party). As a result he was sent a letter asking him to attend at the police station which he did and was subsequently arrested.
There was no mention of involvement in the LTTE or of the police storming his home. The Tribunal determined that he had been given a number of opportunities to explain these matters and did not. Indeed the Tribunal did not accept that the applicant was arrested and detained. I’m satisfied that even if the Tribunal was wrong to have reached that conclusion it would have amounted to an error of fact not of law. The Federal Court per Mansfield J in Kamal v MIMA (2002) FCA 818 held:
“It is not for the Court, on reviewing a decision of the Tribunal to form its own view as to whether it would have given the perceived inconsistencies the significance attributed to them by the Tribunal, or upon any such view to conclude that the Tribunal’s assessment of the applicant’s claims should not have been made. Those evaluative processes are for the Tribunal.”
The Full Federal Court in NAMM v MIMIA (2003) FCAFC 32 per French, Lindgren and Finkelstein JJ held:
“faulty logic in fact finding does not constitute jurisdictional error.”
In any event there are a number of other findings upon which the applicant’s credibility was rejected by the Tribunal. The applicant claimed in his original statement at page 27 of the court book that consequent to the local elections in 1996 his house was bombed by the People’s Alliance government party supporters with the help of security forces:
“At the hearing he said that it had happened in November 1998. When questioned about this inconsistency, he said it was not easy to remember the year. The Tribunal considers that it should not be difficult for the applicant to recall if his house had been burned one year before he left Sri Lanka or three years before his departure. The applicant’s inability to recall even approximately when his house was burned causes the Tribunal to disbelieve this claim.” (p. 89 CB)
The Tribunal also found that:
“Despite the fact that the applicant’s claims to have been forced to flee Sri Lanka centre around the bomb attack on the President shortly before election day, the applicant didn’t know when the attack had taken place, and as noted above, he incorrectly guessed that it had occurred in October or November 1999. The attack actually took place on 18 December 1999. If the election and the bomb attack were the trigger for the events that precipitated his departure from Sri Lanka, it is not believable that the applicant would not know when they occurred. The Tribunal therefore does not accept that the applicant’s business premises were raided after the bomb attack and weapons were found or that some of his Tamil employees were arrested or that the applicant then went into hiding as a consequence of these incidents because he believed that he had been imputed with a political opinion supportive of the LTTE. The Tribunal’s disbelief of the applicant’s claim is strengthened by the fact that he obtained his passport to escape Sri Lanka on 13 December 1999, before the bomb attack and the election, although he informed the Tribunal at the hearing that he had only obtained the passport after the election. The Tribunal is not persuaded by the applicant’s explanation that if a person pays enough money it is possible to arrange for anything to be written on a passport. The applicant did not specially arrange for an earlier date of issue for his passport (even if such a matter could be arranged through bribery), because until the Tribunal pointed out that he had a problem with the date his passport was issued in relation to his refugee claim, he didn’t realise he had a problem at all. In any case, it would have been irrational to have arranged a date of issue for his passport which conflicted with his claims to have fled Sri Lanka following the bomb attack. The Tribunal is satisfied that the applicant’s passport was issued on 13 December 1999, and his claim that he had to travel to Australia on a false passport because he was wanted by the Sri Lankan authorities as a suspect in connection with the bomb attack which occurred on 18 December 1999 is untrue. The Tribunal finds that the security forces were not seeking to apprehend the applicant and his claims that they came to his house and harassed his family about his whereabouts are also untrue” (p.89-90 CB).
And finally (p. 91 CB):
“Taking into account all of the above, the Tribunal finds that the applicant was not persecuted in the past for reason of his political opinion because he supported the UNP or for an imputed political opinion supportive of the LTTE. The Tribunal finds that the applicant has fabricated his claims to have been persecuted in order to provide a basis for claiming refugee status.”
This to my mind disposes of any argument that the Tribunal ought to have considered the “what if I am wrong” test. The Tribunal roundly rejected any imputation of LTTE political profile. The Full Court in MIMA v Rajalingam (1999) FCA 719 per Sackville, North and Kenny JJ said:
“When the RRT is uncertain as to whether an alleged event occurred, or finds that although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a ‘real substantial basis’ for the applicant’s claimed fear of persecution”.
However in Raza v MIMA (2002) FCA 350 per French, Merkel and Gyles JJ it was held:
“The requirement for a ‘what if I am wrong’ analysis amounts to no more than the requirement that the Tribunal consider whether the appellant faces a real chance, or non-trivial probability, of persecution for a Convention reason if returned to the country of origin. The assessment must be carried out even if the Tribunal is of the view, on the balance of probabilities, that an applicant for a protection visa will not face persecution for a Convention reason. If, on the other hand, the Tribunal has concluded that there is no chance or probability of persecution such a conclusion excludes in the alternative hypothesis any alternative probability. In that case the Tribunal is not required to assess fanciful possibilities.”
That is certainly the case here.
In all the circumstances and for the reasons I have outlined I dismiss the application.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate: N. Lane
Date: 10 March 2004
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