VWAL v Minister for Immigration
[2005] FMCA 288
•15 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VWAL v MINISTER FOR IMMIGRATION | [2005] FMCA 288 |
| MIGRATION – Protection visa – whether jurisdictional error – whether finding of implausibility open – whether any basis for finding – further details sought by RRT – whether need for details provides basis for adverse finding. |
W148/00A v MIMA (2001) 185 ALR 703
W70/2001 v MIMA (2001) FCA 1159
SFGB v MIMIA (2003) FCAFC 231
VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) HCA 1 (21 January 2000)
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
| Applicant: | VWAL |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MLG 1475 of 2003 |
| Delivered on: | 15 March 2005 |
| Delivered at: | Melbourne |
| Hearing Date: | 25 February 2005 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Counsel for the Applicant: | Mr J Gibson |
| Solicitors for the Applicant: | Wimal & Associates |
| Counsel for the Respondent: | Ms H Riley |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Application be dismissed.
The Applicant shall pay the Respondent’s costs fixed in the sum of $6,600.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1475 of 2003
| VWAL |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Sri Lanka who was born on 20 April 1953. She arrived in Australia with her husband and two children on a business visa on 19 March 2000. The applicant lodged an application for a protection visa on 11 September 2001. The applicant's husband and two children were included in the application as family members, though made no claims of their own. A delegate of the Minister refused the application on 9 April 2002. The applicant then applied on 29 April 2002 to the Refugee Review Tribunal (the RRT) for review of the delegate's decision. The RRT affirmed the delegate's decision in a decision handed down on 6 October 2003. An application was then filed in this court seeking review of the RRT decision on 20 November 2003.
Both the applicant and respondent have relied upon contentions of fact and law. It should be noted at the outset that there is a key issue to be agitated for and on behalf of the applicant in relation to this application and it relates to a finding by the RRT which appears in its reasons for decision which I shall set out as follows:
“The applicant's account of the assistance she gave the LTTE in Vavuniya was not clear to the Tribunal in that she did not claim to have stored guns for the LTTE in her protection visa application. Additionally, at the review hearing the applicant claimed initially that in the search operation the authorities questioned the applicant but did not know which house they were looking for. She subsequently said they did not know which house initially but they came to know which house they were looking for. However she claimed that nothing was found at the house because somehow the LTTE had prior knowledge of the search and removed their guns. The Tribunal finds that the lack of coherence in these accounts and the implausibility of the LTTE getting prior knowledge of the search of her house undermine the credibility of the applicant. The Tribunal finds that the applicant did not conceal LTTE weapons at her house and that the SLA did not search her house after the weapons had been removed”.
It will be apparent from that extract that an issue for the consideration of the RRT was the issue of what might be described as evidence concerning the storage of weapons by the applicant for the Liberation Tigers of Tamil Eelam (LTTE). A further finding had been made in relation to an issue of whether there was any financial contribution made by the applicant to the LTTE. That issue, however, was not pursued by counsel appearing for and on behalf of the applicant before this court.
It is evident from the extract to which I have referred that the RRT was considering the issue raised by the applicant in what might be described as a different form in her original application. It is relevant and useful to note that in the statement which formed part of the application and which has been reproduced in the court book (see pages 73‑78) that the applicant states the following, which I have amended in order to ensure nondisclosure of the applicant's identity where appropriate:
“However, after being released, I was continually harassed by the LTTE, who would make a number of demands. That because of the allegation that I had provided aid to the LTTE in Saudi Arabia, this information had got around and the LTTE made use of this. They would come to my home and ask if they could store certain items in the house. They would also ask for money and food. That initially, I refused, but they then threatened my family. The threats continued and I did what they asked, as well all knew what happened if you disobeyed the LTTE, especially since my sister's husband was taken by the LTTE in 1990 and we have not heard of him since. That I was then visited by the police, who alleged that persons associated with the LTTE had been seen at my home and that I had been providing them with assistance. That despite denying the allegations, they refused to believe me and told me that I would be under observation. This really scared me, as there are a number of former members of TELO and EPRLF in the area and I was afraid of what information they might pass on to the authorities. I then contacted my husband and I then made arrangements to depart Sri Lanka”.
It is also useful to note that the RRT in its reasons for a decision, having referred to the items being stored as "certain items" consistent with the passage that I have just referred to from the applicant's statement, went on to say the following:
“The applicant was asked what things she'd stored for the LTTE. She replied that she had stored rice and weapons - guns. The Tribunal asked what had happened during the search she had described earlier in her testimony. She said that the authorities claimed they had seen the LTTE visiting her house. The Tribunal observed that the applicant had earlier said the authorities did not know the location of her house. She replied that initially the authorities were not sure but then they established its location. Her house was a little outside the town so it was a useful place for the LTTE. The Tribunal asked why the authorities were unable to find the guns in her house. The applicant said that the LTTE were aware that the authorities were looking for those items so they removed them beforehand”.
The extracts from the RRT decision and the applicant's statement clearly indicate the way in which the factual matrix relied upon in this application had evolved. Initially it is clear from the extracts that the applicant, in referring to items which she had been requested to store on behalf of the LTTE clearly refers to them as "certain items" and then later, upon questioning by the RRT, provides further specific details and refers to the items as being "rice and weapons - guns". It is further clear that in the statement originally made in support of the application the applicant refers to her residence in terms that the police then alleged that persons associated with the LTTE had been seen at (her) home.
Hence the way in which the facts evolved explains in part then the reasoning adopted by the RRT when it ultimately found that the applicant did not conceal LTTE weapons at her house and that the SLA did not search her house after the weapons had been removed. In support of her application before this court it was submitted on behalf of the applicant that the claim that she allowed the LTTE to store the certain items in her house has significant repercussions in convention terms. It is argued that this formed a further plank in her fears of the harm that would befall her if she returned to Sri Lanka, as in the case of her sister's husband, who had disappeared.
It was acknowledged that in her original application the applicant had indicated that because of the allegation that she provided the LTTE with aid that knowledge then became known to others in the region and the LTTE would attend the applicant's home on the basis that if she provided financial support she may provide other support, including storage of certain items. It was after this that the applicant was visited by police, who made the allegation referred to earlier.
It was submitted on behalf of the applicant that when viewing the evidence as a whole, both in terms of what was said initially in the written application and subsequently that there is no basis for a finding of a lack of coherence in the accounts of the applicant, which would critically enable the adverse inference to be drawn or of implausibility in the sense of the implausibility of the LTTE getting prior knowledge of the search and removing the guns. Reliance was placed upon the decision of the Federal Court in the matter of W148/00A v MIMA (2001) 185 ALR 703 where in the joint judgment of Tamberlin and R.D. Nicholson JJ the following passage appears:
“67 ... Where the question of credibility is determinative of a Tribunal decision, to simply assert that the Tribunal considers the applicant's account to be “implausible” or “highly unusual” does not constitute a finding on the question raised. Such expressions are more in the nature of observations or side comments, rather than findings. The reasoning process and supporting evidence that forms the basis on which a finding that evidence is rejected should be disclosed and clear findings made in direct and explicit terms. It is not sufficient simply to make general passing comments on general impressions made by the evidence where the issue is important or significant”.
Counsel for the applicant further relied upon the Federal Court decision in the matter of W70/2001 v MIMA (2001) FCA 1159 where Hely J states the following:
“I am conscious of the observations in W148/00A v Minister for Immigration & Multicultural Affairs (2001) FCA 679, and Thevendram v Minister for Immigration & Multicultural Affairs (2000) FC 1910 that in some cases a bare statement by a decision‑maker that a claimed circumstance is 'not credible' or is “implausible” may cloak the failure of the decision‑maker to address and resolve a material question of fact ...”
The applicant's counsel submitted that the implausibility comment referred to in the extract of the RRT decision set out above masks a failure to address the element of the applicant's claims. It was argued that a critical step in the RRT's approach was its statement that the applicant's account of the assistance she gave to the LTTE was "not clear to the tribunal" and that it further went on to say in that context "in that she did not claim to have stored guns of the LTTE in her protection visa application". It was argued that by simply stating that she was asked to store certain things which she allowed them to do effectively under duress that the applicant could not be accused as a ground for rejection of her evidence that her account was not clear because she did claim to have stored guns. It was submitted that it is appropriate to look at what the applicant did say in her application statement and the fact that she expressly raised a claim of assistance to the LTTE in the circumstances she described. It was then only in answer to a direct question from the tribunal as to which items she was referring to that she gave details of rice and weapons. It was argued the link in the chain on which the tribunal relied upon to support the adverse finding was non‑existent.
A similar criticism was made of the purported discrepancy upon which the RRT relied between claiming that in the search operation the authorities questioned the applicant but did not know which house they were looking for and saying that they did not know which house initially but they came to know which house they were looking for.
The propositions, when seen against what the applicant had said in her application, and noting the method of the conducting of the search, it was argued sit well together and are complementary. Those references, it was submitted, display no lack of coherence or implicit inconsistency or discrepancy. Relying upon those non‑existent matters as a critical link in the chain of reasoning, it was submitted, demonstrates a lack of evidence to support the finding that was made adversely to the applicant.
It was further contended that in the light of the absence of evidence to support the adverse finding reached in relation to these issues independently there is no basis for concluding that the fact of the LTTE getting prior knowledge of the search of her house, given what must have been the visible and lengthy process of the search operation in the area, was somehow implausible and that in combination with the previous matters that undermined the credibility of the applicant. It was argued that to reason in that way was again to make a finding relying upon a non‑existent evidentiary basis.
Counsel for the applicant referred the court to decision of the Full Court of the Federal Court in SFGB v MIMIA (2003) FCAFC 231, which allowed an appeal from SFGB v MIMIA (2002) FCA 1389, founded on various interrelated bases that the tribunal did correctly identify the proper legal test for persecution or if it did then it reached a factual conclusion unsupported by any evidence or that it failed to consider other relevant evidence that was before it or that its conclusion on the evidence was Wednesbury unreasonable.
The following passage from the Full Court's decision in SFGB v MIMIA (2003) FCAFC 231 was referred to:
“19.This argument, if it were made out, would be sufficient to establish that the Tribunal had made a 'jurisdictional error' so as to found jurisdiction in this Court to intervene. If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 231 at 355-357.”
The applicant relied upon that extract as a statement of principle and it was submitted that any other findings in relation to this application by the RRT could not save the decision from jurisdictional error, given the nature of the profile the applicant would have, giving rise to her fear of prospective harm if her evidence were to accepted in the terms in which it was given.
The respondent, by way of reply to those submissions, argued that there is no jurisdictional error demonstrated in the material and that each and every one of the conclusions reached by the RRT were conclusions reasonably open to the tribunal. It was argued that the applicant's account was incoherent and/or inconsistent. The respondent in submissions repeated the discrepancies highlighted by the RRT and argued that failure to mention the storing of weapons in her initial application was a ground provided to the tribunal to be unpersuaded of the truth and clarify of the applicant's claim about any alleged search. It was argued that if the applicant had wanted to refer to weapons in her initial application there is no reason that she would not have. It should be noted at this point that Counsel for the applicant had specifically submitted that in the circumstances it may be understandable for an applicant not to provide precise details at that early stage, save and except to refer to there being a request to store "certain items". In any event it was submitted by the respondent that there was no reason to suppose that the applicant would be "coy about mentioning weapons". It was therefore open to the RRT to consider the absence of an express mention of weapons in the initial application meant the later reference was a belated attempt to bolster her case.
It was further submitted on behalf of the respondent that the applicant's account of the authorities not knowing where her house was but then coming to know where it was was also misplaced and does not constitute another non‑existent link in the chain of reasoning. It was argued the applicant's account of the matter was incoherent because she had initially said at the hearing that the army learned somehow that the LTTE was storing things at her house but was not sure of the location of the house. She said the army rounded people up and carried out a search. She said they asked the applicant if she had been helping the LTTE and then later in the hearing when the RRT asked the applicant further questions about the alleged search she said the authorities had seen the LTTE visiting her house.
When the RRT pointed out that she had said earlier that the authorities had not known the location of her house the applicant then said the authorities did not know initially but they established its location. It was argued those accounts were inconsistent and, in brief terms, the RRT was therefore entitled to draw an adverse conclusion arising out of that inconsistency. It was a conclusion reasonably open to the RRT and not one which could be the subject of challenge in an application of this kind.
The respondent referred to the often‑quoted passage of McHugh in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) HCA 1 (21 January 2000) at paragraph 67:
“67.In addition, the prosecutor alleges that the Tribunal breached s 430(1) by failing to set out reasons for its finding that the prosecutor's claim that members of PLOTE tried to recruit him were "utterly implausible". However, this was essentially a finding as to whether the prosecutor should be believed in his claim - 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 that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word "implausible". The disbelief arose from the Tribunal's view that it was inherently unlikely that the events had occurred as alleged.”
Further reliance was placed upon the decision in the matter of Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at paragraph 55:
“55.These may or may not be valid criticisms of the Tribunal. The Tribunal concentrated its attention on Mr Eshetu's explanation of his fears. Having rejected that explanation, it did not embark upon a search for some alternative explanation which he did not advance. Once again, different minds could form different views about the reasonableness of that approach. However, it involves no error of law. The ultimate question was whether the Tribunal was satisfied about something. The approach adopted by the Tribunal does not manifest a legally erroneous view as to what it was about which it needed to be satisfied. For the Tribunal to conclude that, although it was satisfied that Mr Eshetu feared persecution, an examination of the reasons he advanced as to why he held that fear failed to satisfy the Tribunal that the fear was well-founded, does not reflect any misunderstanding as to the meaning of the concept of a well-founded fear.”
It was argued by the respondent that it is incorrect to assert that there was no basis for the RRT's finding that it was implausible that the LTTE would have had prior knowledge of the search so that it could remove the weapons. During the course of submissions when I raised with counsel the issue of whether there was any basis for that finding it was asserted that one should suppose that the RRT was able to use acquired knowledge or other material which it may have possessed, including perhaps country information.
Reasoning
In considering the issue of jurisdictional error I adopt and apply the following passage from the Full Court of the Federal Court decision in VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 where the Court states:-
“16 It is not disputed by the appellants that in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] citing Craig v State of South Australia (1995) 184 CLR 163. That requires the appellants to establish that the Tribunal fell into error of law by identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion. To this may be added denial of procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 per Gummow and Hayne JJ at [49], footnote 26 referring to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57.”
I note further the authorities referred to by counsel for the applicant in relation to a finding by an RRT of an account being "implausible". In the present case, in my view, it is difficult to determine a proper basis upon which the RRT has found a lack of coherence in the accounts of the applicant in relation to the issue of the search of the house. It is not quite as clear that there is no basis at all in relation to the issue of not disclosing the nature of the "certain items" said to have been stored.
In relation to the implausibility of the LTTE getting prior knowledge of the search I can see no basis upon which that conclusion has been reached. Indeed, in the context of there being a search and given the applicant's residence was out of the town it seems that a contrary inference would be more evident in any event. However, that is only one part of the fact‑finding process. If it were the only part then I would be prepared to find that there is no basis upon which that conclusion of implausibility in relation to that specific fact could be established and if it were critical and the determinative factor, that may provide a basis for jurisdictional error of a kind which would be permissible, having regard to the authorities to which I have referred earlier in this judgment.
The finding, however, about the lack of specific reference to weapons in the original application is not a finding that cannot be said to be without any basis. Whilst the court may be critical of the basis it ultimately could not be claimed that there is no basis at all. The real question, it seems to me, is whether or not it provides any or any proper basis for the conclusion. To make an adverse finding against an applicant is a legitimate and entirely appropriate process for the RRT. A finding of credibility, as McHugh J states in the decision to which I have referred, is a matter uniquely within the domain of the RRT through where further detail is elicited by questioning by the RRT of details which must necessarily arise from the disclosure in the application of, at the very least, an act of storing "certain items" for the LTTE, an adverse conclusion may more readily be drawn where there has been a total absence of any reference to an activity which might attract the attention of the authorities. In this case, a clear indication was given that there was at least an activity, that is, the storing of certain items on behalf of the LTTE which one would reasonably infer would attract the attention of the authorities. After all, had it not been for reference to the storage of certain items then presumably the RRT would not have asked the questions which it properly asked in seeking out further information from the applicant.
In the course of its inquisitorial process the RRT frequently asks questions to obtain further detail not always apparent in either application forms or supporting statements. It is difficult to determine in the present case whether there was any detailed interview by the delegate. There is a reference in the court book to material which would suggest some further material was obtained by the delegate, though this specific issue was not the subject of close questioning.
In my view there does not appear to be any or any proper basis for the implausibility or incoherence conclusion reached by the RRT in relation to the lack of detail concerning the certain items. As to the locality of the applicant's house there is at least in that material some equivocation in the various versions before the tribunal itself as to why the authorities appear to have located or identified the applicant's house. It is clear that in the initial claim there is no indication that the authorities were then aware of the applicant's whereabouts, though she does refer to the police alleging that persons associated with the LTTE had been seen at her home and that she had been providing them with assistance.
Whilst the difference may not be so great it could not be said that there is not at least some evidence in relation to this issue to justify a finding of inconsistency. Slight though the evidence may be it does at least provide some basis upon which a conclusion is drawn. Hence it would seem that perhaps one of the three critical findings which were adverse to the applicant may properly be said to escape from being described as a sufficient basis upon which they could constitute jurisdictional error. Taken alone, however, it would be difficult for that finding of fact to provide any or any proper basis upon which the tribunal could reach its decision.
The RRT, however, made a further finding of fact which the respondent submitted in the circumstances should be a significant issue for this court to consider on judicial review. That finding appears in the following passage from the RRT decision:
“The Tribunal accepts that the situation in Vavuniya area was potentially dangerous in 1998 and that the applicant was generally fearful of the situation but it does not accept the applicant's account of the particular incidents she claimed had happened to her. The Tribunal also finds from the applicant's own account that she was able to leave Sri Lanka on her own passport without difficulty from the authorities there is no real chance that she is wanted by the Sri Lankan authorities”.
After making that finding the RRT had also accepted that the applicant's brother‑in‑law disappeared in the early 1990s after being taken by the LTTE but did not accept that the disappearance puts the applicant under threat from the LTTE. The RRT further goes on to consider country information, particularly that information which provided it with the opportunity to draw the following conclusion:
“The Tribunal also finds that since the ceasefire and peace talks the security situation in Sri Lanka has improved considerably with the state of emergency lifted by the government. In current circumstances and the foreseeable future the Tribunal finds that while the applicant does not face a real chance of harm, her children also do not face a real chance of recruitment into the LTTE (or SLA)”.
In my view despite the criticisms which are properly levelled at the fact‑finding process of the RRT in relation to the storage of guns and the prior knowledge of the search of the applicant's house by the authorities there is ultimately a sufficient basis upon which the RRT could reach a decision reasonably open to it, including the finding in relation to the issue of the locality of her house, combined with the further finding in relation to the issue concerning the passport and other findings which then followed on in the RRT's reasoning, including the assessment and reliance upon country information. In the circumstances the ultimate conclusion reached by the RRT is not one where there is sufficient jurisdictional error to cause this court to intervene. It follows therefore in the circumstances that the application should be dismissed with costs.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 15 March 2005
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