Vwta v Minister for Immigration
[2006] FMCA 397
•23 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VWTA & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 397 |
| MIGRATION – Protection visa – whether jurisdictional error. |
| Migration Act 1958, ss.91R, 91R(1) |
| SAAT v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 345 W375 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 89 |
| First Applicant: | VWTA |
| Second Applicant: | VWTB |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 19 of 2005 |
| Judgment of: | McInnis FM |
| Hearing date: | 2 March 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 23 March 2006 |
REPRESENTATION
| Pro Bono Counsel for the Applicant: | Mr P Condliffe |
| Counsel for the Respondents: | Ms H Riley |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
The Applicants shall pay the First Respondent’s costs fixed in the sum of $6,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 19 of 2005
| VWTA AND VWTB |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By an amended application filed in court and dated 31 March 2005 the Applicants seek judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 1 October 2004. The Tribunal decision had affirmed the decision of a delegate of the First Respondent to refuse the Applicants the grant of protection visas. At the commencement of the proceedings leave was granted to the Applicants to rely upon the amended application and further leave was granted to the Applicants to amend the name of the First Respondent by deleting from the name the words, "and Indigenous", and to add as a Second Respondent, Refugee Review Tribunal.
The Applicants are husband and wife from Sri Lanka. They arrived in Australia on visitor visas on 28 August 2003. They lodged an application for protection visas on 18 September 2003. It is not in dispute that only the husband made specific claims. The wife relied on the membership of his family.
The application was refused by a delegate of the Minister, on 7 November 2003. The Applicants then applied to the Tribunal for review of the delegate's decision and, as indicated, the Tribunal affirmed the delegate's decision in its decision dated 1 October 2004. The application in this instance was initially filed in the Federal Court and transferred to the Federal Magistrate's Court.
Claims and evidence
The claims and evidence have been accurately set out in the First Respondent's contentions and there is no dispute between the parties that those claims are referred to in a number of documents. For convenience I incorporate the relevant paragraphs from the First Respondent’s contentions, as follows:
Claims and Evidence
· in 1983, his house in Raddolugama was attacked by Sinhalese thugs and his car was destroyed;
· he was forced to leave Raddolugama and live in Kinniya where he established a fish business with his father;
· he was making good money so became a target for the LTTE to extort money from him;
· he had a lot of beatings from the LTTE and had to give them what they wanted;
· when he did not have the money to give them, he was taken away and beaten;
· the armed forces also gave the Applicant a hard time because he admitted to them that he gave money to the LTTE;
· the Applicant’s father had similar experiences;
· the Applicant’s daughter was imprisoned on suspicion of having LTTE links;
· when the Applicant travelled to Colombo to see his other daughter, the police imprisoned him for questioning because he had a Tamil surname;
· he changed his surname to his wife’s surname, because she is Sinhalese;
· he left Kinniya after his daughter was imprisoned and went to Colombo with his father;
· the Applicant sent his daughter to Australia;
· he lived in Nawala, Colombo, from 1999 until 2003;
· the LITE found out his telephone number and he started getting threatening telephone calls, demanding money;
· the Applicant said he would pay but did not intend to;
· his father was kidnapped and killed;
· the Applicant was telephoned and told to attend a particular location;
· he went and was beaten and told not to go to the hospital;
· he was treated by a doctor at home;
· if he returned to Sri Lanka he would be killed by the LTTE and the government would not protect him;
· when he was living in Raddolugama, just outside Colombo, he and some others decided to start a branch of the Lions Club;
· the Applicant was treasurer and meetings were held at his house;
· in the riots in 1983, the Applicant’s house was attacked because word had spread that the Lions Club meetings were actually LTTE meetings;
· during the riot, the Applicant and his wife were beaten and suffered head injuries at the hands of the army;
· the family moved to Kanniya, just south of Trincomalee;
· it was in an LTTE controlled area and also had a big army presence;
· about six months after the Applicant arrived in Kanniya, the LTTE took the Applicant and his father to one of their camps where the Applicant was beaten and cut and told that he had to pay the LTTE 10,000 rupees a month;
· the payments had to be made at the LTTE camp;
· the army saw the Applicant going to the LTTE camp and suspected the Applicant of having links to the LTTE and passing information about the army to the LTTE;
· the army would harass the Applicant for being an LTTE informant;
· in 1987, the Applicant had transported army personnel on his boat; he was later picked up by the LTTE and beaten and shot in the left arm while eight other fishermen were shot and killed;
· in 1995 or 1996, the Applicant and his father were in arrears with their payments to the LTTE;
· the Applicant was picked up by the LTTE and taken to their camp where he was beaten and cut and shot in the leg;
· the Applicant was treated badly by the army at roadblocks when he travelled to Colombo to visit his daughter;
· the army demanded the best part of each catch of fish;
· in the early 1990’s, the Applicant was taken by the army and accused of telling the LTTE the location of an army bunker;
· the army beat him with batons and his right shoulder was fractured;
· in the early 1990’s, the Applicant’s older daughter had become a teenager; she fell in love with an LTTE member who tried to persuade her to join the LTTE; the daughter was taken and questioned by the police several times;
· the Applicant decided his daughter should marry a Muslim neighbour;
· in about 1993 or 1994, while preparing for the marriage, two soldiers came to the house to take the daughter to the army camp; the Applicant was so angry, he assaulted them;
· a few hours later, six or seven soldiers took the Applicant away and beat him and said leave or be finished;
· army harassment increased after this;
· Kanniya became an LTTE territory as part of a ceasefire agreement in the late 1990’s; the LTTE wanted all non-Tamils to leave; the Applicant and his father sold their business and moved to an outer suburb of Colombo called Nawala;
· about a month after they arrived, they were contacted by the LTTE to pay the money they owed; the Applicant’s father was threatened over the telephone many times;
· in 2000, the Applicant’s father was assaulted by the LTTE; rather than the Applicant being beaten by the LTTE after the move to Nawala, as stated in the statements dated 17 September 2003 and 2 December 2003 (“the earlier statements”), it was the Applicant’s father who was beaten; the error was made by the Applicant’s son in law who had read the earlier statements to the Applicant in Sinhalese and the Applicant had then signed them;
· shortly after the assault, the Applicant’s father asked the Applicant for one lakh of rupees; the father’s body was found in the mortuary a few days later with gunshot wounds to the head; [ the death certificate, at CB56, shows the date of death as 29 March 2003];
· about one month later, in 2001, the LTTE contacted the Applicant, and demanded money; they kept calling him; the earlier statements saying that the Applicant was contacted in late 2002 are wrong; he was contacted in 2001; this is another error by the Applicant’s son in law;
· in late 2002, the Applicant changed his telephone number and then the Applicants used all their money staying in hotels and guesthouses to hide from the LTTE for four or five months before coming to Australia;
· the police would not help a Tamil, especially one suspected of helping the LTTE.
It is noted that reference was made to a further statutory declaration made on 20 May 2004 (CB 199) where the Applicant claimed he feared the LTTE, not only because he owed them money but also because he was married to a Singhalese woman; he has changed his name from a Tamil name to a Singhalese name; and because the LTTE suspected him of being an informant for the army while he was living in Kanea. The Applicant also relied upon a medical report dated 14 May 2004 (CB 122). The Applicant appeared and gave evidence before the Tribunal.
The Tribunal's decision
It is noted that, in this instance, the Tribunal decision comprises 47 pages. A great deal of the decision refers in detail to the Applicant's claim and it is further noted that the Tribunal in its findings and reasons sets out specific findings, ultimately adverse to the Applicants' claim. It is not necessary to set out in detail all the findings of the Tribunal though in its decision the Tribunal noted that the Applicant said at the hearing that there were Tamils and Singhalese in his Lions Club branch.
The Tribunal noted that club is well known for its philanthropic work and is very active in Sri Lanka. In the circumstances the Tribunal did not accept that the Lions Club would be regarded as a front for the Liberation of Tamil Tigers of Eelam (LTTE) and did not accept that the Applicant was targeted by the army because they thought he was LTTE.
The Tribunal found that the attack on the Applicant's house, alleged to have occurred in 1983, was because the Applicant was a Tamil. It accepted that the Applicants' house was damaged but did not accept that the Applicants were personally assaulted. It found that if they had been physically injured then the Applicant would have mentioned this in earlier statements.
The following appears at Court Book p.39 the following:
“… The Applicant claimed that in July 1990 the army accused him of telling the LTTE the location of an army bunker which was attacked and was detained for two days. He claimed the army broke his shoulder and legs and inflicted wounds upon him with broken bottles. The Tribunal does not accept that this incident took place. It finds it difficult to accept that the Applicant would neglect to mention a claim of such importance and seriousness in his earlier submissions. The Tribunal similarly finds the Applicant's claim that he was taken by the army in 1993 and tortured after they had come to his home looking for his daughter and he fought with the officers is of such seriousness and central to the Applicants' case for protection that he would fail to include it in his earlier submissions. As the Tribunal has discussed above, it finds it difficult to accept that the Applicant did not remember these incidents of detention of torture or appreciate their importance to his application for protection when preparing his earlier submissions to the Department and the Tribunal. The Tribunal therefore does not accept that after this incident in 1993 the harassment by the army increased. It follows that it does not accept that the Applicant reported this harassment to the police, who told him to sort out his own problems. The Tribunal notes that when the Tribunal asked the Applicant whether he reported any of the extortion by the LTTE to the police in Kinniya he stated he only ever went to the police once or twice but because they did not take him seriously he did not bother again. The Applicant did not claim in the hearing to have reported the armed forces to the police. The Tribunal accepts the Applicant's original claim that he was harassed by the army. The Tribunal accepts that the Applicant may have had to supply the army with fish in exchange for permission to fish. It also accepts that they may have questioned him about giving money to the LTTE. However, the Tribunal finds that the Applicant was not subjected to harm by the armed forces of such seriousness as to amount to persecution within the meaning of the Convention.”
The Tribunal also made findings in relation to the movements of the Applicant and concluded that, whilst the Applicant remained in Kinniya for 16 years, notwithstanding the extortion and that he had sufficient money to buy two properties in Colombo during that time, it did not accept that remaining in Kinniya for 16 years was consistent with the degree of harm he claimed to have experienced in his later claims.
It specifically did not accept that the essential and significant reason for the Applicant being targeted by the LTTE was because he changed his name to a Singhalese name; because he was married to a Singhalese woman; because the LTTE thought that he was an informer for the army; because the LTTE thought he was a traitor to the Tamil cause; or because he was a Tamil.
The Grounds of the application
Ground 1: The Tribunal acted without or in excess of jurisdiction, in that it misconstrued the Applicant's claim and thereby identified a wrong issue, asked itself a wrong question and relied upon irrelevant material or ignored relevant material
Particulars subjoined to that ground include a reference to the Applicant claiming that the Sri Lankan army broke his shoulder and legs and cut him with broken bottles, that there was evidence provided of these injuries, that the Tribunal rejected this evidence because the Applicant had not made it in earlier submissions, that there was no proper consideration of those injuries claimed consistent with the Applicant's claims and the medical evidence, and that there was insufficient consideration of the medical information provided consistent with the Applicant's claims.
It is convenient to deal with the first ground and the submissions made in support of this ground at this stage, having regard to the Tribunal's findings, part of which are set out earlier in this decision. Whilst it was submitted for and on behalf of the Applicant that jurisdictional error arose from the matters set out in support of Ground 1, it was argued for and on behalf of the Respondent that there is no jurisdictional error and that effectively the Applicants seek to reagitate the facts and criticise the facts as found by the Tribunal, rather than demonstrate any jurisdictional error.
In my view a proper reading of the Tribunal's decision-making process, including its critical finding, demonstrate that it has analysed in detail what might be described as exemplary or, in the very least, in a manner free of jurisdictional error it has analysed the claims and has rejected them, and has done so by reference to the chronology of events and the complaints raised by the Applicant during the various stages of the procedure, including the application and material provided both to the Department and the Tribunal. Although it was submitted for and on behalf of the Applicant that the process should not be one similar to the technical interpretation of pleadings in a court of law, it is my view this analogy cannot be sustained.
In this instance the claims are not complicated claims, though they clearly, at a later stage, involve quite serious allegations of harm. An Applicant omitting to mention serious claims including injuries suffered which in this case was later referred to by the Applicant as being injury including broken shoulders and legs and wounds inflicted with broken bottles are not matters which require any technical or detailed analysis. Hence, when referring to that type of allegation raised at a later stage I can see no error in the Tribunal's reasoning process if it chooses to draw an adverse inference, based on the fact that those allegations were not raised at an early stage.
To put it another way, the Tribunal is doing no more, in my view, than analysing material and coming to a conclusion that the later allegations may properly constitute recent invention. It has, by inference, made an adverse credibility finding against the Applicant. In this application I can see no error arising from the reasoning process of the Tribunal. It is not necessary to set out in detail the other findings of the Tribunal similar to the extract set out earlier in this judgment.
I am not satisfied that the reasoning process which I have read carefully, demonstrates any error of a kind which would constitute jurisdictional error, or which would support the first ground of the application. Hence that ground should fail.
Ground 2: The Tribunal failed to properly apply the test as to persecution under the Refugee Convention
A number of matters were raised in support of this ground and reference was made to a finding by the Tribunal that the LTTE extorted money from the Applicant and that this was for non‑Convention reasons primarily, because he had an ability to pay. It referred to other claims, however, made by the Applicant that this was part of the process of political intimidation, and that he and other fishermen were suspected of collaborating with the army. It was claimed that the persecution consisted not only of the extortion but of the threats, beatings, torture and woundings inflicted upon the Applicant and his family.
Those claims, it was argued, amount to persecution for imputed political beliefs, which could be said to be an essential and significant reason for the persecution suffered. Accordingly, it was argued the Tribunal did not properly address the issue of the injuries and mistreatment suffered in coming to its conclusion in relation to the issue. Insufficient consideration was given to the medical evidence referred to earlier in this decision, and it was argued that the material would appear to found a well-founded fear of persecution and a real chance that it may reoccur.
Reference was made in the course of submissions in support of ground 2 to the Tribunal's findings and the claim before the Tribunal. Those references appeared to, at least in part, include an analysis of the claim and to some extent sought to criticise the decision-maker for failure to properly apply s.91R(1) of the Migration Act 1958 (the Act). It was argued that it is not sufficient to simply make a finding in relation to extortion, as it may well be that in certain circumstances there can be multiple causes for persecution.
The First Respondent made reference to the essential and significant reasons for the Applicant being targeted by the LTTE, having been found by the Tribunal to be not a Convention reason but because he had an ability to satisfy the demands of extortion. It was submitted the Applicant effectively seeks to challenge the finding by reference to the other claims made, including the claim that he was suspected by the LTTE of collaborating with the army. It was submitted the Tribunal was well aware of that claim and referred to it in detail, and after noting those claims rejected any claim that an essential and significant reason for the LTTE assaults was the alleged collaboration with the army.
Again it was submitted in this instance the Applicant seeks impermissibly to reagitate the merits of the matter. It was submitted that whether something is the essential or significant reason, a particular action is a question of fact and degree for the Tribunal to determine (see SAAT v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 345). In this instance it was submitted the Tribunal specifically rejected the claim that the essential and significant reason for the assaults by the LTTE was the Applicant's change of name, his marriage to a Singhalese or his alleged collaboration with the army. Accordingly there is no basis, according to the First Respondent's submissions, to challenge the Tribunal's finding.
It was further submitted that the Tribunal did not accept that the physical injuries identified in the medical report were inflicted in the circumstances as alleged by the Applicant, including his description of the assaults by the LTTE. Other findings of fact concerning alleged harassment from the army and claims in relation to discriminatory inactivity of the army were considered according to the First Respondent's submissions by the Tribunal, and conclusions drawn which were reasonably open to the Tribunal free of error.
In my view the First Respondent's submissions are correct. This Tribunal decision demonstrates in clear terms that the Tribunal has properly applied s.91R of the Act. It has drawn a conclusion of fact reasonably open to it concerning the question which it was required to consider. It has drawn an adverse conclusion in this matter in relation to the claims by the Applicant, and to that extent has effectively found the Applicant was not a credible witness.
Specifically, it has made the finding it is required to make as to whether or not the claim was an essential and significant reason for the LTTE assaults namely, that they were as a result of the alleged collaboration with the army. It has rejected that claim and in my view it was open to it to reject that claim and the others to which reference has already been made, including the suggested claim by the Applicant that the assaults occurred for other reasons.
Conclusion
I should note in passing that during the course of submissions, reference was made to various authorities by counsel for the Applicant. Those authorities in my view do not assist the Applicant's claim, and in particular I do not see any analogy between this case and the decision W375 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 89 (W375). In that case, as submitted by the First Respondent, the Tribunal found the Applicant's claims as made to the Tribunal were recently invented to bolster an earlier claim that he realised could not succeed.
In W375 the Applicant disputed the claims as made to the Tribunal were any different to those made in an interview with a department officer. The Full Federal Court in that case listened to the tape and found the Applicant had made the claims that were presented to the Tribunal in his earlier interview as well. It then held there had been jurisdictional error because the Tribunal had refused to listen to the tapes of an earlier interview with the Applicant which would have shown his claims as made to the Tribunal were not recent invention.
I accept that there is no such evidence in the present case. In this instance there were earlier detailed statements made by the Applicant on the commencement of the application, including detailed typewritten responses to specific questions raised in the standard application form. Those answers, in my view, on a proper reading demonstrate a clear understanding of the issues to be addressed, and the Tribunal was entitled to consider that material together with subsequent material which differed markedly from the ultimate explanation given to the Tribunal at the hearing. It was then able to determine the issue, as indicated earlier, on the basis in part of recent invention, and effectively reject the Applicant's claim.
It follows the application should be dismissed with costs.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 23 March 2006
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