VSAD v Minister for Immigration
[2004] FMCA 760
•15 October 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VSAD & ANOR v MINISTER FOR IMMIGRATION | [2004] FMCA 760 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether RRT decision lacking supporting evidence – findings as to credit – whether Wednesbury unreasonableness – no jurisdictional error – application dismissed. |
Judiciary Act 1903 (Cth)
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59
| Applicants: | VSAD & VSAE |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MLG 1010 of 2003 |
| Delivered on: | 15 October 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 15 October 2004 |
| Judgment of: | Hartnett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Fernandez |
| Solicitors for the Applicant: | Ruwan Samarakoon |
| Counsel for the Respondent: | Mr Grey |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDER
The application is dismissed.
The applicants pay the respondent's costs fixed in the sum of $6,500.00.
Pursuant to rule 21.15 of the Federal Magistrates Court Rules2001 the Court certifies that it was reasonable for the parties to employ an advocate.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1010 of 2003
| VSAD & VSAE |
Applicants
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Proceedings were commenced upon the applicants filing of an application on 14 August 2003. That application was filed in the Federal Court and subsequently remitted to this Court. The applicants seek orders pursuant to section 39B of the Judiciary Act 1903 (Cth) against the respondent in relation to a decision of the Refugee Review Tribunal (RRT) handed down on 11 July 2003. That decision affirmed a decision of the delegate to refuse to grant protection visas to the applicants. The application was subsequently amended upon the filing of an amended application on 12 December 2003. The claims of the applicants are set out in paragraph B(2) of that amended application.
Effectively, those grounds are:
a)that the Tribunal failed to correctly identify the claim of the applicants; to ask the right questions in relation to those claims in the context of the Convention and Protocol; and to rely on appropriate information to assist in its satisfaction in relation to those correctly identified claims; and
b)the Tribunal erred in finding that no sufficient nexus with the Convention was demonstrated and in making that finding overlooked the applicants' claims.
History
The applicants are nationals of Sri Lanka, a husband and wife of Sinhalese ethnicity who arrived in Australia on 16 September 2001. They lodged applications for protection visas on 4 October 2001. The first applicant, on whose claims his wife's application depended, I shall refer to hereafter as the applicant.
A delegate of the Minister wrote to the applicant on 11 December 2001 expressing non-acceptance of three aspects of the applicant's claim and inviting comments on those matters. The applicant provided comments in a responding statement dated 4 January 2002. The delegate refused to grant a protection visa on 29 January 2002 and the applicant sought review by the RRT and submitted further documents and information to the RRT in support of his case. A hearing was held on 10 June 2003 and the applicant gave oral evidence. A transcript of the hearing is before the Court.
The applicant claimed to have left Sri Lanka because he had received death threats from the army and police. He claimed whilst in Sri Lanka to have been taken into custody five times between April 2001 and July 2001 and persecuted by the authorities there in connection with his association with a Tamil friend and colleague whom he claimed had entrusted the applicant with sensitive LTTE documents. He claimed the documents included maps of the airport where the applicant worked and text written in Tamil. He claimed he was suspected by the authorities to be connected with an attack made by the LTTE on the airport on 24 July 2001 and was tortured to obtain information in this regard.
He claimed to have been charged with certain offences but not brought before a Court. He was released, even though the authorities suspected him of complicity with the LTTE as a result of a bribe paid by his father and his father's political influence. The applicant submitted letters from his family and a friend purportedly corroborating his account of persecution.
The RRT handed down its decision on 11 July 2003. Its relevant findings and reasons were as summarised accurately by counsel for the respondent and as follows:
(1)The RRT accepted that the applicant had a Tamil friend who perhaps aroused in him sympathy for those Tamils who pursued self-determination.
(2)The RRT found that it was implausible that the applicant, a Sinhalese person who did not support the LTTE, would be asked to care for sensitive documents that were, at least impliedly, for use by the LTTE for its own clandestine, violent activities.
(3)Noting that the applicant did not know why the friend was arrested or when he was said to have been killed, the RRT found that his claim that his friend would, if arrested, draw attention to the documents, lacked credibility. The RRT found implausible the claim that even though the applicant was detained on several occasions as a suspected supporter of the LTTE he was released on each occasion after no more than six days.
(4)The RRT did not accept that if the applicant had been faced with allegations as a collaborator with the LTTE he would have been able to obtain his release in the manner claimed.
(5)The RRT found the applicant's evidence about the charges against him to have been vague and unsatisfactory and the claim to have been charged with serious offences but not taken before a court to have lacked credibility.
(6)The RRT did not believe the applicant's claim that he, as a person who (it was claimed) was suspected of assisting the LTTE, would have been permitted to retain a job in a sensitive area (an airport).
(7)The RRT found that the fact the applicant was able to depart Sri Lanka on his own passport underscored (its) view that the applicant was not wanted by the authorities.
(8)The RRT considered a letter dated 7 April 2003 purportedly from a politician who arranged the applicant's release from an army camp in July 2001. The RRT rejected the implied representation made in the letter. It noted the vague terms of the letter, and said further in this regard:
"The Tribunal finds it utterly implausible that the applicant would be apprehended by the army on the basis that he was, allegedly, an active supporter of the LTTE involved in a major bombing incident at Colombo's international airport, and then be released after just a few days simply due to the payment of a bribe and the intervention of a politician."
(9)The RRT found that the applicant was never wanted by the authorities, had fabricated his claims of suspicion and detention on the basis of support for the LTTE. The RRT found the letter purportedly from a politician had been contrived in order to bolster false claims to asylum.
(10)The RRT noted that it had given weight to country information indicating there to be no recent plausible reports to the Australian Department of Foreign Affairs and Trade of Sinhalese suspected of sympathising with the LTTE, and that if a Sinhalese were caught assisting the LTTE (whether out of sympathy or financial gain) they would be "treated in the same way as a Tamil, by being prosecuted under the Prevention of Terrorism Act”.
(11)The RRT observed that any arrest of the applicant in relation to suspected involvement with a terrorist organisation would be “essentially in relation to a criminal matter and any prosecution of him would be in accordance with laws of general application”, and “no sufficient nexus with the Convention” would be demonstrated.
(12)The RRT found that the letters submitted by the applicant from his mother, sister and a friend were "contrived in order to bolster false claims to refugee status” giving reasons for that finding.
Consideration
In essence, the applicant does seek a merits review by this Court of the Tribunal's findings, and such a course is not open to this Court. The RRT found against the applicant's credibility. It found that he had fabricated his claims. It found his claims and evidence on those claims, amongst other things, “implausible”, “vague and unsatisfactory” and lacking in “credibility”. The making of such findings adverse to the credibility of an applicant is a function of the administrative decision‑maker. It is not a function with which a reviewing Court may permissibly interfere (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 per McHugh J).
Counsel for the applicant referred to the principle that an administrative decision-maker makes a jurisdictional error if he or she grounds a decision upon a finding of fact which lacks any supporting evidence. There is no doubt about the existence of that principle, however, it is difficult to apply it to a rejection of evidence which is the task in which the RRT in this instance engaged. The Tribunal had to satisfy itself on the basis of the material put before it by the applicant. If that material was rationally rejected by the decision-maker as I find to have occurred the applicant cannot complain that no evidence supported the rejection. Plainly there was evidence before the decision-maker, that being the evidence presented by the applicant himself.
A Tribunal of fact is entitled to reject the evidence of a witness if it rationally considers that evidence to be implausible. I find the Tribunal did correctly identify the proper legal test for persecution and did reach a factual conclusion supported by evidence before it. It considered all relevant evidence and then made its findings. There is no evidence that the decision of the Tribunal was `Wednesbury’ unreasonable or that the material on which the Tribunal relied was so inadequate that the only inference that can be drawn is that the Tribunal applied the wrong test or was not in reality satisfied in respect of the correct test. I find no jurisdictional error of this type committed by the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59 at 62, 67, 76 and 90-91).
It is for the Tribunal to determine the merit of the claim. The general conclusions reached by the Tribunal were supported by the material to which the Tribunal referred in the material put before it by the applicant.
I accept the submissions of Counsel for the respondent that in light of the RRT's finding rejecting the claims that the applicant was entrusted with LTTE documents; was suspected or complicit with the LTTE and was detained for this reason, the question whether any error may have attended the RRT's observation to the effect that no Convention nexus would exist in relation to any prosecution of the applicant is immaterial. No error on this matter could have affected the outcome.
I dismiss the application and order that the applicant pay the respondent's costs.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate: Sophie Killen
Date: 15 October 2004
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