VFAJ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1081

FEDERAL COURT OF AUSTRALIA

VFAJ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1081

MIGRATION – whether Tribunal required to give an applicant particulars of its thought processes prior to making an adverse decision

Migration Act 1958 (Cth) ss424A, 430

Tin v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1109, followed

VFAJ OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V320 OF 2003

MARSHALL J
8 OCTOBER 2003
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V320 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	VFAJ OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MARSHALL J
DATE OF ORDER:	8 OCTOBER 2003
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent’s costs of the appeal.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V320 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	VFAJ OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MARSHALL J
DATE:	8 OCTOBER 2003
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The proceeding before the Court is an appeal from a judgment of a Federal Magistrate. The learned Federal Magistrate dismissed an application by the appellant to review a decision of the Refugee Review Tribunal (“the Tribunal”), which in turn had affirmed a decision of a delegate of the respondent not to grant the appellant a protection visa.

2. The essential issue raised for the Court’s consideration by this appeal is whether s424A of the Migration Act 1958 (Cth) (“the Act”) imposes upon the Tribunal a duty to disclose to an applicant, before deciding a case adversely to her or his interests, whether it has formed a critical view about the applicant’s credibility. There is an ancillary issue concerning whether s430 of the Act was complied with by the Tribunal.

3. The appellant is a citizen of Sri Lanka of Singhalese ethnicity. She entered Australia on 9 August 2000. On 6 September 2000 the appellant applied for a protection visa. A delegate of the respondent refused the application on 3 October 2000. The appellant applied to the Tribunal on 23 October 2000 to review the decision of the delegate. The Tribunal heard evidence from the appellant in an oral hearing conducted on 23 April 2002. On 29 May 2002 the Tribunal affirmed the decision of the delegate. The appellant then sought judicial review of the Tribunal’s decision in this Court. That application was transferred to the Federal Magistrates Court by North J on 13 September 2002. The Federal Magistrates Court dismissed the application on 30 April 2003.

4. In her reasons for judgment the learned Federal Magistrate recited the appellant’s claims made to the Tribunal. Essentially the appellant claimed that she was an activist in the United National Party (“UNP”) who had suffered at the hands of political opponents without police protection, over a period from 1994 to 2000.

5. The learned Federal Magistrate noted that the RRT did not consider the appellant to be a credible witness. It did not believe the appellant’s central claim, that is, that she was “an active, well known or important UNP member …”. It did not accept that she had been mistreated by the authorities or harmed by political opponents because of her support for the UNP. The Tribunal did not accept that the appellant had a well founded fear of persecution on account of her political opinion.

6. The Federal Magistrates Court held to the effect that it was open to the Tribunal to make its adverse credibility findings to the detriment of the appellant. At [23] of her reasons, her Honour said:

   “There is no express statutory obligation on the Tribunal to tell the applicant of its concerns in relation to her demeanor. Section 424A obliges the Tribunal to provide the applicant with particulars of any information received by it which would be the reason or part of the reason for affirming the decision. This is not inclusive of the Tribunal’s thought processes in evaluating and deciding upon the material before it …”

7. Her Honour referred, in support of that view, to the judgment of the Court in Tin v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1109. In Tin, the view was expressed by Sackville J at [54] that “information” for the purposes of s424A of the Act does not include perceived deficiencies in the evidence given by an applicant before the Tribunal.

8. No authority to the contrary was cited by counsel for the appellant in oral argument on appeal. No cogently reasoned attempt was made to convince the Court to depart from the reasons of Sackville J in Tin. In any event I agree, with respect, with the views expressed by Sackville J in Tin. No other cogent submission was made on appeal to this Court which identified any jurisdictional error made by the Tribunal which ought to have been corrected on judicial review by her Honour. An issue was raised by counsel for the appellant concerning whether s430 had been complied with by the Tribunal, given its alleged insufficient description of its observations about the appellant’s demeanour, in finding her not to be a credible witness.

9. I reject the contention that the Tribunal did not set out with sufficient detail the reasons why it found the appellant’s demeanour in giving her evidence to be of assistance in deciding not to accept that evidence.

10. The Tribunal stated explicitly that the appellant was “reluctant” to give evidence about certain matters to which it referred twice at para 9 of its decision. Further at para 11 it referred to the appellant as “hesitant, confused and vague” in giving her evidence.

11. In any event the Tribunal is not compelled by s430 to state in a chapter and verse way what precisely, in the evidence of an applicant, led it to have concerns about its veracity. Each aspect of an applicant’s demeanour in assessing the Tribunal’s queries are not required to be painstakingly set out as a result of s430. A logical consequence of the appellant’s submission in this case would be to impose such a requirement.

12. The appeal is completely devoid of merit and will be dismissed, with costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:            8 October 2003

Counsel for the Appellant:	Mr T A Fernandez
Solicitor for the Appellant:	Kuwan and Samarakoon
Counsel for the Respondent:	Mr C Fairfield
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	8 October 2003
Date of Judgment:	8 October 2003