VWDC v Minister for Immigration - [2006] FMCA 50

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VWDC v MINISTER FOR IMMIGRATION

[2006] FMCA 50

MIGRATION – Application for review of decision by Refugee Review Tribunal – whether applicant had a well founded fear of persecution by reason of political involvement – jurisdiction of the court to review findings about applicant’s credibility – section 424A of the Migration Act.

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), ss.422B,424A

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Craig v South Australia (1995) 184 CLR 163
Minister for Immigration v Yusef (2001) 206 CLR 323 Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Re MIMIA; Ex Parte Durairjasingham (2000) 168 ALR 407

Applicant:

VWDC

Respondent:

MINISTER FOR IMMIGRATION & MULTICTURAL & INDIGEOUS AFFAIRS

File Number:

MLG 707 of 2004

Judgment of:

Connolly FM

Hearing date:

6 October 2005

Date of Last Submission:

6 October 2005

Delivered at:

Melbourne

Delivered on:

23 January 2006

REPRESENTATION

Counsel for the Applicant:

N/A

Solicitors for the Applicant:

Self represented

Counsel for the Respondent:

Ms L. De Ferrari

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The Refugee Review Tribunal be joined as a second named respondent.
That the application dated 16 February 2004 be dismissed with costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 707 of 2004

VWDC

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

16 February 2004 seeking judicial review of the decision of the Refugee Review Tribunal on 17 December 2003 to affirm the decision of the delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant a protection (class AZ) visa.

The history

The applicants are Sinhalese citizens of Sri Lanka. They came to Australia on 16 July 1999 and lodged an application for protection (class AZ) visas with the Department of Immigration and Multicultural Affairs on 26 July 1999. As the son and daughter rely on the claims of their mother, for convenience the mother shall hereinafter be referred to as “the applicant”. Pursuant to the provisions for the issue of a protection visa in respect to applicants who are members of the same family unit, it is enough if one family member is a person to whom Australia has protection obligations.
On 7 April 2000, a delegate of the Minister for Immigration and Multicultural Affairs refused to grant the protection visa. The applicant applied for review of that decision to the Refugee Review Tribunal (“the Tribunal”), which affirmed the delegate’s decision on 5 February 2002. The applicant applied for review of the Tribunal’s decision to the Federal Court of Australia.
By order on 21 August 2003, the Federal Court set aside the Tribunal’s decision and remitted the matter back to the Tribunal (differently constituted).
The applicant claimed that she can not return to Sri Lanka as she fears persecution by reason of her political involvement with the United National Party (‘UNP’) in Sri Lanka, by ‘henchmen’ of her political opponents connected with the People’s Alliance (‘PA’) party.
The applicant claimed that she worked in banking and then as a business partner from 1991 until her departure from Sri Lanka in 1999. The applicant claims that she was well known for her political involvement as she had been the President of the UNP Women’s Front in the Wattala constituency from 1993. She had actively supported the UNP during election campaigns, provided money to the UNP, gave speeches at public meetings and campaigned with UNP party leaders. The applicant had been active in the UNP since about three years prior to her election to President of the Women’s Front in 1993. The applicant told the Tribunal that she had been most politically active in respect of the 1994 election. There was also a Provincial Council election in January 1999, which was a few months prior to the applicant arriving in Australia.
The applicant claimed that her house was attacked and her car damaged by PA supporters following the UNP’s loss in the general and presidential elections in 1994, and that this was due to the applicant’s UNP involvement. The applicant also claimed that the new government deliberately made decisions in respect to import quotas which damaged her husband’s business (his import permit was withdrawn) because of her UNP connection. The applicant also claimed that her political opponents threatened her with death, torture and the kidnap of her children – mostly via telephone calls. She also noticed persons lurking around her house and that she was followed by members of the PA. The applicant and her husband visited Australia in March 1999, during which the applicant claims there was a threat made to kidnap her children. She stated that an incident in early 1999, during which she was threatened with death by two persons riding motorcycles, was the impetus for her decision to leave Sri Lanka because it was the first time she had been approached in person.
The applicant’s husband remained in Sri Lanka when the applicant and her children came to Australia. The applicant claimed that her husband had received some phone calls querying her whereabouts after her departure, and that she could not return to Sri Lanka because of the political uncertainty and the possibility of an election in the near future. In 2001 the UNP was victorious in Sri Lanka’s election, but the applicant claimed that this did not change her situation and that she would still be at risk of persecution by reason of her political opinion if she returned to Sri Lanka.
In the decision made by the second Tribunal on 17 December 2003, the Tribunal affirmed the decision of the delegate not to grant the protection visa. The Tribunal did not consider the applicant’s fear of persecution to be well-founded. The Tribunal therefore found that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention (as amended by the Refugees Protocol); consequently the applicant did not satisfy the criterion under section 36(2) of the Migration Act 1958 (Cth) (“the Migration Act”) for the purposes of a protection visa. Specifically, the Tribunal stated that it:
a)accepted that the applicant was a committed UNP supporter and that her family has a long history of support for the UNP, but believed that the applicant had exaggerated the nature and extent of her involvement with the UNP’s activities;
b)did not accept that the applicant went to Wayamba to campaign at the end of 1998 as claimed by her, and noted that she seemed unaware of important details in respect to the January 1999 election;
c)accepted the applicant had been President of the UNP Women’s Front, but found her evidence that she had given speeches to large groups of people to be unconvincing;
d)accepted that the applicant was most involved in helping the UNP with the 1994 elections;
e)accepted the applicant’s house and car could have been damaged as claimed, and that her political affiliation was a factor in the cancellation of her husband’s import permit;
f)was unable to accept that the applicant was harassed for her involvement in election preparations in the Wayamba and Southern regions, because it did not accept she was so involved;
g)did “not find her evidence about the [telephone] calls continuing for so many years [after 1994] to be credible and [did] not accept that she has given an accurate account of this”;
h)considered that, by 1998 the applicant’s political involvement was limited and for that reason if any persons lurked around her house then that was not likely to be for a political reason;
i)considered the applicant’s evidence in relation to being threatened by persons on motorbikes and the threat to kidnap her children, to be unconvincing;
j)did not accept that the applicant had been persecuted in the past for her political involvement; and
k)concluded that the chance of the applicant coming to serious harm upon return to Sri Lanka would be remote.
On 16 February 2004 the applicant lodged an application in the Federal Court of Australia, being V105 of 2004, pursuant to s.39B of the Judiciary Act 1903 (Cth), for review of the Tribunal’s decision. By order of Registrar Mussett on 15 September 2004, the matter was transferred to this Court, being MLG 707 of 2004. The applicant filed an amended application and also contentions of fact and law on 7 April 2004, claiming that the Tribunal had committed jurisdictional error. Summarily, the applicant argued that:
a)in assessing the applicant’s credibility, the Tribunal should not have placed such great emphasis on the applicant’s inability to recall exact dates;
b)the Tribunal should not have used the reason that the applicant could not recall exact dates to discredit the applicant’s claim that she had received threatening telephone calls; and
c)the Tribunal failed to give proper consideration to all the matters put before it by the applicant.
The respondent’s contentions of fact and law, which were filed on

6 April 2005, rebutted the applicant’s contentions arguing, summarily, that:
a)the applicant’s application is misconceived by reason that it is in essence only seeking merits review; and
b)the applicant disagrees with some of the Tribunal’s findings, many of which were based on the applicant’s credibility, which are par excellence the providence of the Tribunal and not reviewable by this Court.
On 21 April 2005 when the matter was listed for hearing in this Court, the applicant requested an adjournment to give her further time to prepare written submissions. The adjournment was granted to

6 October 2005 and the applicant was ordered to file and serve any amended application and any amended contentions of fact and law by no later than 20 July 2005. The respondent was ordered to file and serve any amended contentions of fact and law by no later than

24 August 2005. The respondent’s costs of the day were reserved.
On 1 June 2005 the applicant filed a document entitled ‘my response to the respondent’s contentions of fact and law’. In summary, she made the following further claims:
a)that the Tribunal had denied her natural justice and “the Tribunal did not follow the procedures required by the Act”; and
b)“my credibility should not have been an issue, as it is very difficult to remember things and this should not have been used against me when the tribunal was making its final decision”.

The law

Section 36 of the Migration Act provides for the class of visas known as protection visas. The relevant protection obligation is defined in Article 33 of the Refugees Convention relating to the status of refugees which is required to be read in light of the definition of refugees in Article 1A. The Convention, which as amended, applies to a person who:
…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
The term “well-founded fear of persecution” is affected by the provisions of s.91R of the Migration Act which provides as follows:
(1)For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a)   that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution;   and
(b)   the persecution involves serious harm to the person; and
(c)   the persecution involves systematic and discriminatory conduct.
(2)Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)   a threat to the person's life or liberty;
(b)    significant physical harassment of the person;
(c)   significant physical ill-treatment of the person;
(d)   significant economic hardship that threatens the person's capacity to subsist;
(e)   denial of access to basic services, where the denial threatens the person's capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
Following the decision of the High Court in Plaintiff S157/2002 v 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 Migration 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 s.474. Section 474 does not apply to decisions which involve jurisdictional error whatever the scope or extent of the jurisdictional error; see for example Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323 at 351.
An administrative Tribunal exceeds its power, and thus commits a jurisdictional error, if it identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material, or, in some circumstances, makes erroneous findings or makes a mistaken conclusion in a way that affects the exercise, or purported exercise, of the Tribunal’s power (Craig v South Australia (1995) 184 CLR 163 per McHugh, Gummow and Hayne JJ at 179). This is not exhaustive. Those kinds of errors may well overlap (see Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323).

Conclusions and findings

The application for review and both sets of particulars provided by the applicant recite a list of errors in terms of natural justice, procedural fairness and failure to follow the procedures under the Migration Act 1958. It is clear from the documents that the applicant disagrees with factual findings and with the conclusions that the Tribunal based on these findings. Those are matters that all go to merits review not matters that would found jurisdictional error. It is not the role of this court to review a decision of the Tribunal on the merits.
With respect to some of the findings made against her by the Tribunal, the applicant’s credibility was in issue because of different versions she gave of what the Tribunal regarded as very important incidents. I also accept the respondent’s contention that credibility findings “are par excellence the providence of the Tribunal” and not something this court can review (Re MIMIA; Ex Parte Durairjasingham (2000) 168 ALR 407) save for the issue of whether there is a breach of s.424A of the Migration Act. Whilst s.424A was not an issue raise by the applicant, the respondent in its role as the model litigant brought the matter of whether that had been any breach of the section before the Court.
Section 424A of the Migration Act provides as follows:
Applicant must be given certain information
(1) Subject to subsection (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application; or
(c) that is non-disclosable information.
The two aspects of the Tribunal’s reasons that the respondent says require to be brought to the Court’s attention are the finding with respect to the applicant’s involvement in the Wayamba provincial election and secondly the sequence of events consisting of a visit to Australia by the applicant and her Husband in March 1999 (and the reason for it), being stopped in Sri Lanka by people on motor bikes and telephone threats to kidnap her children received by the applicant’s father while she and her Husband were in Australia.
The respondent contends the relevant parts of the Tribunal’s reasons with respect to the elections are as follows:
“I asked the applicant about her claim to have spoken in public and she said that she participated in public meetings, small and large, and talked at these and also gave speeches at the time of the 1994 election and at the 1996 Provincial Council elections which was when she went to Wayamba. She said that she had not participated in any other elections. I said to the applicant that she had stated in her protection visa application, lodged in 1999, that she had been involved in the Southern Provincial Council election campaign and in the campaign in Wayamba and that she had stated that these were recent. There was an infamous Council election in Wayamba in January 1999 but the applicant’s evidence at the hearing indicated that her involvement in the Council elections was some three years before she came to Australia, not just months. I put this to her and she said that she took part in meetings and that most of the speeches she gave were in the context of the 1994 campaign. I asked her if she had taken part in any election-related work in the months before she left Sri Lanka in 1999 and she said that it had been a bad year and that she had been depressed and afraid at that time although had continued her involvement with the party at the village level. She said that she had gone to Wayamba with Mr Seneratne and had made speeches there; I asked her when and she said that it had been in late 1998 just before the election in January 1999 (which I had said had occurred) but she also said that she was confused about the dates. I asked her had had happened during the Wayamba election and she said that there had been rigging of votes and a lot of violence. I asked her about a particularly horrible episode of mistreatment of a woman UNP supporter there and she was not aware of what had happened (the applicant said that she and her husband had been killed which they were not) and she could not recall whether she knew the woman concerned or not (CB page 68)…
The applicant states in her protection visa application that she was actively involved in the UNP campaign in the ‘recently concluded elections in the Wyamba (North Central Province) and Southern Elections. (Provincial).’ The applicant states that she worked in Matara in the south, alongside the UNP member of parliament Rajitha Seneratne. The applicant states that her political opponents threatened her in ‘several telephone calls’ with ‘death/torture and wanted (her) to give up politics because her family is respected and is in a position to influence how people vote. There was also a threat to kidnap the applicant children. She states that ‘recently when (she) was returning home with (her) husband after closing (their) business premises in Colombo two persons on motorcycles came and made to slow down (the car in which the applicant and her husband were travelling) and threatened (the applicant) with death again’. It was this incident which led her to decide to leave the country (CB page 69)…
There were no elections in 1996: the government postponed local elections due to be held that year (United States Department of State Country report on human rights practices – 1996: Sri Lanka Washington DC, February 1997 Section 3). ‘Elections for seven of the country’s nine provincial councils took place during (1999, the year of the applicant’s departure for Australia). In January (1999) elections were held in the northwest (‘Wayamba’) province; the ruling PA won 28 seats, the UNP won 19 seats, and the JVP won 3 seats. This election was marked by violence and accusations of electoral fraud. The Centre for Monitoring Election Violence (CMEV) reported more than 800 instances of violence, including 2 cases of murder and 11 cases of attempted murder, as well as a large number of assaults and cases of intimidation. In response to sharp criticism about the way that the vote was conducted, the President appointed a commission staffed by two retired judges to evaluate allegations of electoral fraud. Although they agreed that the poll was flawed, no new election was called. In February (1999) the President also created a bipartisan monitoring committee (which she chaired) to ensure that the remaining provincial council elections were “free and fair”. Although there was some criticism following the five provincial council elections held in April (1999) and the southern province election held in June (1999), reported incidents of violence were far fewer that in January. The ruling PA party narrowly won elections in the April provincial council elections, claiming 120 of 263 seats. The UNP took 112 seats and the JVP won 15. In the June southern provincial elections, the PA gained 27 seats, the UNP won 21, and the JVP won 7 (United States Department of State 1999 country report on human rights practices: Sri Lanka Washington DC, March 2000 Section 3). ‘The case in which a UNP Provincial Councillor and a woman supporter of the UNP, Ms BM Chandrawathie, were assaulted and stripped of their clothes during the Wayamba elections was one of the most sensation al’ elements of the violence which broke out. Two PA people were taken into custody in connection with the episode (Inform: situation report February 1999 CX35416; the incident was also reported in ‘Dignity of women degraded under a woman President- Indrani Iriyagolla’ The Island 20 November 2001 CX59751) (CB page 74-75)…
The applicant’s involvement with the UNP and its consequences are at the heart of her claim to fear persecution if she were to return to Sri Lanka. I accept that the applicant is a committed UNP supporter and that she comes from a family with a long history of support for the party. While I accept that the applicant may have assisted with campaigning at election time and donated money to the party, there were aspects of the applicant’s evidence which indicated to me that she has exaggerated somewhat the nature and extent of her involvement with the party and its activities. The applicant had submitted in her protection visa application lodged in July 1999 that she had been recently involved in the Provincial Council election campaigns but stated at the hearing that she assisted with the 1996 Provincial Council elections. There were, however, no such elections in 1996; rather these occurred in 1999, in the months before her departure for Australia. I don not consider that people can reasonably always be expected to recall the dates when they did things but her evidence that the Provincial Council elections occurred in 1996 indicates that this was some three years before she left the country whereas they in fact occurred just months before. Had the applicant had the profile she claimed, I consider that she would have been able to recall rather more accurately when the Provincial elections occurred, at least in relation to whether they were months or years before her departure. The applicant stated that she had gone to Wayamba to campaign and it was only after I had put to her the difficulties with her claim to have done so in 1996 and told her that the election was in 1999 that she said she had gone to Wayamba in 1998 to campaign; it was then that she said too that most of her involvement had been in relation to the 1994 elections. I do not accept that the applicant went to Wayamba to campaign as she had claimed at the end of 1998. The violence which accompanied that election was widely reported and she was aware of it. She was not, however, aware of the particularly humiliating mistreatment of a UNP woman by PA supporters and I do not consider that a person with the profile she had claimed as President of a local UNP Women’s Front and who had travelled to the area to campaign could have been unaware of this. Further, when I asked the applicant about her election related work in the months before she came to Australia in 1999 she said that it had focused on preparations for the 2001 elections (I assume she meant 2000) but there was also a Presidential election due later that year as well as the Provincial Council elections which were conducted during the first half of the year. I am prepared to accept that the applicant was President of the UNP Women’s Front in her district but I found her evidence about giving speeches to large gatherings of people was not convincing particularly because she was unable to recall when various elections were held other than the Presidential and parliamentary election in 1994; it appeared from her evidence that this was when she was most involved in helping the UNP and I accepted that this was so (CB page 76-77)…
There are difficulties with other aspects of the applicant’s evidence about the adverse consequences of her involvement with the UNP. The applicant has claimed that she received, frequently but irregularly, threatening calls for some five years. I have already found her claim to have assisted in the Provincial Council elections she names (Wayamba and Southern) not credible and it follows that I am unable to accept that she was threatened on this account as state in her protection visa application. The applicant has stated that threatening calls began after the 1994 elections and threatened her with being hurt if she did not stop her work for the UNP. While I accept that the applicant may have received some nasty calls in the aftermath of the 1994 elections, I do not find her evidence about the calls continuing for so many years to be credible and I do not accept that she has given an accurate account of this: I consider it most improbable that she would not have taken such threats seriously had they been made as often and for as long as she claims. She claims she and her husband were followed and people lurked around their house and that this was something she noticed began about a year before she and her husband came to Australia in March 1999 and that this made her think that the threats might need to be taken seriously. I do not consider that the evidence indicates that it people were following her and if people were lurking around the house then they were PA supporters trying to stop the applicant being involved in the UNP: by 1998, when her evidence indicates she noticed these developments, her involvement in party business was limited and I do not consider that it was of a character to prompt such sustained attention by PA people. If the applicant and her husband were followed and if people lurked outside their houses, I do not consider that the reason for this involved matters political. I do not accept that any calls which her husband might have received after her and the applicant children’s departure for Australia were from PA supporters wanting to threaten or intimidate the applicant as she has claimed her husband suspected (CB page 78).

The relevant parts of the Tribunal’s reasons with respect to the sequence of events are:
“The applicant also states in her statutory declaration of

30 November 2003 that she and her husband came to Australia to visit in March 1999. Her father took care of the applicant children and while they were here he telephoned them to say that he had received a telephone call and people threatened to kidnap the children and that he suspected that these people were PA supporters. The applicant states that ‘there is no other reason why someone would make such a threat and the other threats (she) had received in the past were from PA members. As soon as the applicant had this news, she and her husband returned to Sri Lanka. She states that it was after this, in April 1999, that the applicant was driving home alone when she was intercepted by two men on motorbikes. They told her to stop what she was doing or she would have more trouble and the applicant took this to mean that she should stop her political activities; she suspects that they did no because preparations were underway for elections. As stated also in her protection visa application, she states that she was afraid she could be killed because it was the first time she had actually been approached in person and this led her to leave the country. At the hearing the applicant’s evidence was that it was after the episode when she was spoken to by people on motorbikes that she and her husband came to Australia and while they were away the threat made to kidnap the applicant children. Her evidence was that this occurred during her first visit to Australia in March 1999. I said to the applicant that people may not always recall dates but that I would have thought that the sequence of these incidents would be accurately recalled. She said that there had been a translation problem with her statutory declaration and that the incident involving the people on the motorbikes was after she and her husband returned to Sri Lanka when told about the threats to kidnap the applicant children. The applicant then indicated that she had feared for her life at the time of her first visit to Australia and had not intended to return to Sri Lanka then and would not have done so were it not for the kidnap threats her father told her he had received. I asked her what was to become of the applicant children and she said that safeguarding her life had been the urgent first step. I asked her what had led her to make such an urgent departure as it appeared had occurred and she said that the continuing telephone calls telephone calls had not been the main worry but she had been very frightened when confronted by the people on the motorbikes. Then she said that the telephone calls had sometimes involved death threats. I asked the applicant if she ever reported the harassment and threats to the police and she said that there would have been no purpose in doing so because she did not have sufficient evidence (CB page 70-71).
The applicant’s evidence about the threat to kidnap the applicant children and being stopped by people on motorbikes and told to stop her involvement with the UNP was unconvincing. She stated in her statutory declaration that she and her husband came to Australia in March 1999 to visit for a holiday and does not indicate that their departure was because of fear to avoid the chance of facing persecution. It is stated in the statutory declaration that while here they learned from her father of the threat to kidnap the applicant children and that it was in April 1999, after their return, that the applicant was told by the people on the motorbikes to stop what she was doing which she took to mean her involvement in politics. The applicant’s evidence at the hearing was that her departure with her husband in March 1999 was because of fear and that it followed the incident involving the people on motorbikes which occurred before she and her husband came to Australia in March 1999. When the discrepancy in the evidence was put to her, she said that the approach by the people on motor bikes occurred after her and her husband’s return to Sri Lanka. The applicant’s evidence about the sequence of these two apparently serious episodes – the threat to kidnap the children and being approach by the people on the motorbike – was confused. There is as well the difficulty relating the timing of the alleged threat to kidnap the applicant children to the profile of the applicant’s political involvement at that time which I have found to have been limited, including because of her lack of knowledge of elections underway in that year. I have found not credible the applicant’s account of sustained and frequent telephone calls and against the background of these factors, it is difficult to accept that there was a threat to kidnap the applicant children at the very time she and her husband were out of the country when there has been no claim of any previous adverse interest on the part of PA supporters towards the applicant children. I note as well that the applicant’s evidence was that the people on the motorbikes told her to stop what she was doing which she took to mean her political activity which was at that time limited. Even her own evidence did not indicate that they told her to stop what she was doing for the party. The difficulties with the applicant’s evidence about these two episodes has led me to conclude that they did not occur in the way or for the reason she has described.” (CB page78-79).
The respondent argues that on first reading these two aspects of the Tribunal’s reasons could appear to be based on inconsistencies between what the applicant said in her protection visa application and what she gave by way of evidence to the Tribunal (that is, her statutory declaration of 2003 and the oral evidence). However the respondent submits that there is no “SAAP” type error in this case. It submits that this is because the inconsistencies found by the Tribunal and which led the Tribunal to disbelieve that the claimed events occurred, when carefully considered, arise entirely from the evidence that the first applicant gave for the purposes of her application for review before the Tribunal.
With respect to the first inconsistency the respondent submits that the Tribunal had knowledge from country information that there had been no provincial elections in 1996 but that the elections were held in Wayamba province in January 1999. I accept that submission. The relevant country information is set out in the second paragraph of the Court Book at page 74. Further, the Tribunal had knowledge from country information that there had been an incident which involved particularly humiliating treatment of a UNP woman by PA supporters in Wyamba in the period leading up to the January 1999 elections. The relevant country information is set out in the first paragraph of the CB at page 75:
“The case in which a UNP Provincial Councillor and a woman supporter of the UNP, Ms B M Chandrawathie, were assaulted and stripped of their clothes during the Wayamba elections was one of the most sensational’ elements of the violence which broke out.”
In my view, the country information when read as a whole, is certainly not about the applicant or about another person and accordingly serves within the exception in section 424A(3)a. The Full Court has recently set out the way in which the construction of s.424A should be considered in VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178:
11 The appellant first submits that the Tribunal’s failure to put to him, and to invite his comments upon, country information that it took into account after the hearing, constitutes a breach of its statutory obligation pursuant to s 424A(1) of the Act. This raises the question whether the Tribunal was exempted from that obligation because the country information falls within the exception provided in s.424A(3)(a) of the Act.
12 Section 424A(1) obliges the Tribunal to give to the applicant for review particulars of any information that the Tribunal considers would be the reason or a part of the reason for affirming the decision under review. Both parties accept that this obligation is prima facie engaged in this proceeding. The scope of the exception provided in s.424A(3)(a) is, however, at issue: "This section does not apply to information that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member."
13 The appellant contends that the information does not fall within the exception for two reasons. First, the information, whilst not being specifically about the applicant is specifically about other persons, though unnamed. Second, this information is not "just about" a class of persons of whom the applicant is a member, as it also concerns "how the Cambodian authorities deal with SRP members."
14 Both contentions fail. The first contention depends upon the characterisation of the information contained in the country reports. These reports were prepared by human rights bodies and foreign governments and concerned two main themes: the political environment associated with the holding of local level commune elections in February 2002; and the general treatment of SRP members by the Government. Those reports necessarily involved some reference to the people who took part in the events described therein. But it does not follow that this was information specifically about those persons, and it plainly was not.
15 The major premise of the second contention, as the appellant accepted, is that s.424A(3)(a) contains two criteria that must be satisfied in order for the Tribunal to be relieved of its statutory obligation. Such a construction of the paragraph has been rejected by previous Full Courts. The true construction of the paragraph is one whereby
reference to the class of persons in subs 424A(3)(a) is not another criterion to be met. It is designed to underline the specificity required by precluding any argument that reference to a class would be taken as a reference to all individuals falling within it.
That was the view of the unanimous Full Court in VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 (at [12]-[14] per Gyles and Conti JJ; at [21] per Allsop J) (VHAP of 2002) and it has been followed ever since.
16 It must again be emphasised that the requirement for a Full Court to be satisfied that an earlier decision of another Full Court is plainly wrong before departing from it, is most unlikely to be satisfied by a mere repetition or development of arguments already authoritatively rejected. It is to be regretted that at least three Full Courts have recently been invited to depart from the settled construction of s 424A(3)(a) on what appears to have been no more than a rehearsal of previously rejected arguments: see Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264; WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92. Much more is required: see Telstra Corp v Treloar (2000) 102 FCR 595 at 602-603 (Branson and Finkelstein JJ) and see QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [28]-[30] (Lander J; Dowsett J and Hely J agreeing).
This approach was followed recently by Branson J in SZBDF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1493.
The respondent further submitted that although there was the factual assertion in the applicant’s statement made in July 1999 (as part of her application for the protection visa) that the elections in Wayamba and the elections in the southern province were “recently concluded,” it was the statement she made at the hearnig that she assisted in the elections in 1996, which did not occur, that was the inconsistency in the applicant’s story which was crucial to the Tribunal (CB page 76):
“The applicant had submitted in her protection visa application lodged in July 1999 that she had been recently involved in the Provincial Council election campaigns but stated at the hearing that she assisted with the 1996 Provincial Council elections. There were, however, no such elections in 1996; rather these occurred in 1999, in the months before her departure for Australia.”
This inconsistency is one that arises by comparison with independent country information, not by reference back to the statements the first applicant made for the purpose of her protection visa application.
The inconsistency was compounded by the fact that the applicant sought to explain that she had campaigned in 1998. The Tribunal found her story not to be credible as she had no knowledge of the humiliating treatment of a UNP woman (CB page 77). Again this is an inconsistency in light of the independent country information, not as a result of a prior inconsistent version of events as may be set out in her application ofr a protection visa.
Further, I am satisfied that the above inconsistencies were themselves not “information” for the purpose of s.424A(1). What has occurred in the rejection of the applicant’s evidence and the subsequent findings are an exposition of the Tribunal’s reasoning process, the result of the weighing-up of all of the evidence (Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592).
Finally this case was susbequent to the enactment of s.422B of the Act and therefore there was no common law obligation on the part of the Tribunal as part of the fair hearing rule, to give to the applicant an opportunity to deal with the relevant matters adverse to her interset, where disclosure was not required pursuant to s.424A(1). In any event the Tribunal did give an opportunity to the Appliacnt at the hearing to deal with the factual matters arising from the country information which caused it to doubt the veracity of the first applicant’s stay.
The second inconsistency arose as a result of the different accounts given in her statutory declaration of 2003 and her oral evidence at the hearing of the sequence of events being her vist to Australia with her husband (and the reasons for it, once stated to be a holiday, once stated to be because of fear engendered by being stopped by the people on motorbikes), the threatening call and the incident with the people on motorbikes. Accordinty the information which the Tribunal concluded to be inconsistent and therefore unconvincing, was entirely information which the first applicant gave to the Tribunal and came within the exception in s.424A (3B).
In light of the above it is not necessary for me to determine how
s.424A(1) applies to inconsistencies between statements in a protection visa application (not later adopted by the Tribunal) and the applicant’s evidence to the Tribunal.
Accordingly in all the circumstances of this matter I am satisfied that there is no jurisdictional error disclosed and 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 Connolly FM

Associate: Nadia Morales

Date: 20 January 2006