VGAB v Minister for Immigration
[2003] FMCA 363
•27 August 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VGAB v MINISTER FOR IMMIGRATION | [2003] FMCA 363 |
| MIGRATION – Review of decision of Refugee Review Tribunal – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth)
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Kioa v West (1985) 159 CLR 550
Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553, 558
W148/00A v Minister for Immigration and Multicultural Affairs (2001) FCA 679
| Applicant: | VGAB |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ988 of 2002 |
| Delivered on: | 27 August 2003 |
| Delivered at: | Melbourne |
| Hearing Date: | 12 August 2003 |
| Judgment of: | Hartnett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr A Hands |
| Counsel for the Respondent: | Dr S Donaghue |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDER
The application is dismissed.
The applicant is to pay the respondent's costs and disbursements of and incidental to the application pursuant to the Federal Magistrates Court Rules 2001.
It is certified that pursuant to r 21.15 of the Federal Magistrates Court Rules 2001 this matter reasonably required the attendance of counsel as advocate.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ988 of 2002
| VGAB |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant arrived in Australia on 22 March 2000 at Sydney Airport as a member of the Sri Lankan Lifesaving Association, that Association then competing in the World Lifesaving Championships in Australia.
On 6 April 2000 the applicant lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural Affairs. On 30 June 2000 a delegate of the Minister refused to grant a protection visa.
The applicant applied to the Refugee Review Tribunal (RRT) for review of the delegate's decision. On 20 June 2002 the Tribunal affirmed the delegate's decision, finding that it was not satisfied that the applicant was a person to whom Australia owed protection obligations.
On 12 August 2002 the applicant applied to the Federal Court to review that decision and the matter finally proceeded before me on
12 August 2003. Counsel for the applicant appeared in a pro bono capacity and the Court is grateful for the assistance he provided to the applicant.
By way of preliminary point, I note that the amended application asserted that the decisions under challenge were both the decision of the Tribunal and the earlier delegate's decision. The delegate's decision was reviewed by the Tribunal. Section 415 of the Migration Act 1958 (Cth) (the Act) provides that when conducting that review the Tribunal may exercise all of the powers and discretions that are conferred by the Act on the person who made the decision. That application involved a full merits review. See Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57. The decision with which I am concerned and which is the effective decision is that of the Tribunal.
Refugee Review Tribunal hearing
In addition to the documentary evidence before the Tribunal the applicant gave oral evidence and oral submissions were made on his behalf by Mr Lucas of Victoria Legal Aid.
The applicant claimed to be a member of the UNP. He had enlisted in the Sri Lankan army and was fighting the LTTE in the north and east of Sri Lanka. The PA came to power whilst he was a soldier and his officers were replaced by members of the armed forces who supported the PA. He alleged that in the course of his duties, he and six other soldiers were ordered to bury the bodies of persons killed extra-judicially by four officers of the Sri Lankan army. He claimed that this took place near Chemmani. The applicant alleged that he and the six other soldiers were warned by the four officers to say nothing or to suffer the consequences. Two of the seven soldiers were killed by one of the four officers in front of the remaining five. This was to serve as a warning against giving evidence. This prompted the five remaining soldiers to desert. The applicant alleged that he had also given evidence that senior officers were involved in the murder of some three to four hundred people who were buried in mass graves and as a consequence, a number of grave sites had been dug up.
The applicant claimed to have lived in a temple near his home in Colombo for some 10 months until he was able to escape to Australia with the help of his wife and the secretary of the Sri Lankan Surf Lifesaving Association and a Minister by the name of Lokuge. He asserted that he was unwilling to seek protection from the Sri Lankan government and he did not believe that it would be able to protect him.
The applicant provided country information about the Chemmani incident and about the trial of Corporal Rajapakse, being the trial at which he had given evidence as to the mass graves. He further provided a letter from the UNP (United National Party) MP, Mr Lokuge, dated 10 December 2001 which stated that the applicant had served in the Sri Lanka army and held fears for his life. In his evidence before the Tribunal the applicant told the Tribunal that he had provided information to Mr Lokuge about the mass graves near Chemmani and that Lokuge, as then a member of the opposition, UNP, had raised questions in the Parliament to embarrass the government. Letters from the applicant's wife were also tendered before the Tribunal.
The Tribunal rejected the applicant's claims. It did so essentially because the Tribunal came to the conclusion that the applicant was not a credible witness (CB 100). The Tribunal noted that it was not required to accept uncritically all claims made by the applicant.
The Tribunal accepted that the applicant had served in the Sri Lankan army but did not accept that he had left the army in the circumstances as described by him.
The Tribunal did not accept that the applicant was involved in burying people in mass graves in Chemmani as he had claimed or that he was threatened by the four officers who had been responsible for killing over 400 people. The Tribunal said at (Case Book 100):
The exact matching of the applicant's claims with the description of events in a newspaper report (Divaini, 23 May 1999) and in the Human Rights Watch Report submitted by the applicant gives the Tribunal cause to suspect that he has prepared his claims based on these reports and then presented the reports to substantiate the claims. The Tribunal further notes that Corporal Rajapakse made a statement of 3 July 1998 at the conclusion of his trial naming the four officers responsible for the mass killings at Chemmani (the applicant provided a newspaper report which substantiated this statement), and that following his statement in Court, the government commenced an inquiry into his allegations which lead to the discovery of some grave sites …
The Tribunal also rejected the applicant's claims that one of the four officers said to have been responsible for the mass killings had shot two of the soldiers that the applicant claimed had been ordered to assist him in burying the victims. The Tribunal stated:
Based on its disbelief of these elements of the applicant's claim, the Tribunal finds that the applicant has fabricated the claims that he was one of the soldiers required to help dig mass graves and that the four officers involved threatened that he would be killed if he spoke about what had happened. The Tribunal finds that the applicant did not desert from the army in 1999 because he feared that he would be harmed by the four officers. The Tribunal therefore does not accept that the applicant's family were threatened by the four officers or their associates and find that the letters purportedly from the applicant's wife have been written solely for the purpose of supporting his claims for refugee status and are not a true account of events.
The Tribunal is strengthened in its conclusion that the applicant's claims are not true by the implausibility of his story that while he was hiding in a temple in Colombo, he was able to participate in selection trials for a Sri Lankan Lifesaving Association tour of Australia and that he was assisted to come to Australia to escape his fear of persecution by being selected for the team (CB 101-102).
The Tribunal rejected a letter from Mr Lokuge the Sri Lankan Minister for Tourism, which was said to corroborate the applicant's claims on the basis that it did –
not accept that the applicant has been truthful to Mr Lokuge any more than he has been truthful to the Tribunal.
It noted various inconsistencies in the applicant's evidence in relation to Mr Lokuge that supported this conclusion (CB 102).
As a result of the above conclusions, the Tribunal found that:
If the applicant were to return to Sri Lanka now or in the reasonably foreseeable future there is not a real chance that he would be harmed for reason of his political opinion or a political opinion imputed to him or for any Convention reason. The Tribunal finds that the applicant's fears are not well founded (CB 103).
Consideration
The RRT considered the elements of each of the claims advanced by the applicant as it was required to do. It made findings in respect of the matters put before it by the applicant and it is not for this Court to substitute its own views of the evidence.
In Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24, the High Court held that if there has been a jurisdictional error a decision cannot properly be described as “a decision made under the Act” and thus is not a privative clause decision as defined in sub-section 474(2) and (3) of the Act. Further, that a decision flawed for reason of failure to comply with the principles of natural justice is not a privative clause decision within s.474(2).
The error of law going to jurisdiction asserted by the applicant is that in the course of the hearing the Tribunal asked the wrong question in relation to “own nationality” protection. The question the Tribunal asked was:
Why wouldn't the Sri Lankan government protect you?
The applicant submits that this is not a question the Convention requires the Tribunal to answer. The question the Tribunal should have asked was:
What was the basis for the applicant's unwillingness to avail himself of the protection of that country?
It is argued for the applicant that in the Tribunal asking that question it would have provided the applicant with an opportunity to explain why his “well founded fear of persecution” would have prevented him from approaching the government.
This ground must fail. The issue is not whether any particular question was asked during the decision making process but whether the decision maker directed its mind to the question that that decision maker was required by statute to answer. There is no suggestion in the reasons for decision that the Tribunal misunderstood its functions. The hearing process before the Tribunal is designed to afford the applicant an opportunity to put any material that the applicant desires before the Tribunal. The proceedings before the Tribunal are inquisitorial and it is for the applicant to advance whatever evidence or argument he wishes to advance in support of his claims. The decision maker must bring to the applicant's attention the critical issue or factor on which a decision in likely to turn so that he or she may have an opportunity of dealing with it (Kioa v West (1985) 159 CLR 550). It is sufficient that the substance of the issue is brought to the applicant's attention. Procedural fairness does not normally require that the decision maker disclose his or her thinking processes or indeed, evaluative conclusions on the material provided by the applicant.
The Tribunal is not required to elicit material on behalf of the applicant. It is no part of the duty of the decision maker to make the applicant's case for him (Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553, 558).
If in attempting to understand the claims made by an applicant the Tribunal asks a question or questions not strictly required in order for the Tribunal to discharge its task, that does not reveal error of law unless by an examination of the reasons provided by the Tribunal that examination shows that the Tribunal misunderstood its task. That is not the case here.
Indeed, the Tribunal made a finding of fact that the applicant was not in need of protection from anyone as he had not experienced the threats or engaged in the conduct that he claimed gave rise to his fear of persecution. Thus whether the Sri Lankan authorities would protect him (as submitted by counsel for the respondent) did not play any part in the Tribunal's decision to refuse to grant the applicant a protection visa.
The applicant's further submission was that in the Tribunal not finding the applicant a credible witness the Tribunal left itself open to a claim that it was open for a reasonable person to apprehend bias in its deliberations and reasons. The submissions of the applicant included that such apprehended bias could be perceived in listening to the tape of the proceedings and reading the reasons for the Tribunal's decision. The tape of the proceedings was not placed before me.
The Tribunal determined as a factual matter to reject certain parts of the applicant's evidence. The Tribunal determined that the applicant was not a credible witness, which is a finding of fact. As was said in W148/00A v Minister for Immigration and Multicultural Affairs (2001) FCA 679 at (64) by Tamberlin and RD Nicholson JJ:
“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.”
It is clear that credibility findings were open on the evidence placed by the applicant before the Tribunal.
The applicant submits in his contentions and argued before me that the bases for submission of apprehended bias were those as are set out in his contentions, paragraphs (a) to (c) on pages 13 and 14. I accept the respondent's contention that those submissions of the applicant are such that there is a claim that the Tribunal prejudged the applicant's application. There is no foundation in the Tribunal's reasons for any claim of apprehended or actual bias.
The decision was clearly open on the facts before the Tribunal. There is no jurisdictional error or denial of natural justice established in this case. The decision is a privative clause decision and there has been no failure to satisfy any of the so-called “Hickman” provisos. The claim of “bad faith” was abandoned by the applicant. It was clearly unmeritorious. Accordingly the application is dismissed and the applicant is to pay the respondent's costs.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate: T. Jones
Date: 26 August 2003
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