VWTP v Minister for Immigration
[2006] FMCA 57
•31 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VWTP v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 57 |
| MIGRATION – Protection Visa – Review of decision of Refugee Review Tribunal – whether jurisdictional error – credibility finding. |
| Machmud v Minister for Immigration & Multicultural Affairs(2001) 66 ALD 98 Re Minister for Immigration and Multicultural Affairs: ex Parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | VWTP |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 209 of 2005 |
| Judgment of: | McInnis FM |
| Hearing date: | 8 December 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 31 January 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr. R. Sorensen |
| Solicitors for the Applicant: | Asylum Seeker Resource Centre |
| Counsel for the Respondents: | Mr. S. Hay |
| Solicitors for the Respondents: | Clayton Utz Lawyers |
ORDERS
The Amended Application filed 16 March 2005 be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $6,400.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 209 of 2005
| VWTP |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant relies upon an amended application filed 16 March 2005 seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 13 October 2004. The Tribunal affirmed the decision of a delegate of the First Respondent to refuse the Applicant the grant of a protection visa.
The Applicant is a citizen of Sri Lanka who had arrived in Australia on 22 September 2003. It should be noted that the Tribunal had before it for consideration the applications of the Applicant, his wife and two children. It appears that in the proceedings before this Court there is only one Applicant named, though nothing would appear to turn on that fact for the purpose of this application.
On 17 October 2003 the Applicant applied for the protection visa. In that application, it was claimed that the Applicant would face persecution at the hands of his former commanding officer in the Sri Lankan army if he were to return to Sri Lanka, because the Applicant was the main witness to an incident where 30 to 40 Liberation Tigers of Tamil Eelam (LTTE) prisoners were killed, and at the subsequent inquiry the Applicant refused to give the evidence his commanding officer ordered him to give.
The application as amended seeking judicial review essentially raises three errors which the Applicant claims entitle him to relief. The errors in summary form may properly be referred to as follows:-
a)The Tribunal erred in law by requiring the Applicant to corroborate his claims.
b)Failure to consider relevant considerations.
c)Failure to properly assess the availability of state protection.
The Tribunal's Decision
It is noted that the Tribunal rejected a number of the Applicant's claims. It did accept however, that the Applicant was a former Sri Lankan army officer who had ceased in that capacity in about 1995 as a result of a court martial at which he pleaded guilty to a charge of being absent without leave. It made that finding based upon information provided at the hearing. Perhaps significantly, the Tribunal at the outset under the heading "Findings and Reasons" states the following:-
“... Whilst the Tribunal has considerable reservations as to the accuracy and veracity of much of the evidence of the applicant, it cannot entirely discount the possibility that during the course of his military service, he knew and came into conflict with a senior officer (...), or that this senior officer may have had some involvement in the circumstances leading to his court-martial.”
It is significant that thereafter the Tribunal makes what can only be described as significant adverse credibility findings in relation to the Applicant's claims. It is noted that the following appears in the Tribunal decision:-
“The Tribunal does not however accept as credible, critical claims made by the applicant in relation to his association with that officer. The applicant’s case hinges on acceptance of his primary claim to face harm from … with whom he says he clashed during his military service in the Army, following his refusal to lie to an enquiry about an incident in 1983 at Welikade prison. It also depends on acceptance of allegations that this Colonel was involved in serious criminal activities, in which he unsuccessfully tried to involve the applicant and was responsible for threats and harassment over many years, and a grenade attack on the applicant in Colombo in 2000, and who seeks to harm the applicant. The motivation for that harm is said to be because the applicant has knowledge of those criminal activities, and may reveal them. In doing so, the applicant says not only will he expose the Colonel, but that his revelations are of such magnitude they could cause the fall of the government, a possible coup, and the failure of the peace accord in Sri Lanka. Apart from the applicant’s own unsupported allegations however, there is absolutely nothing to corroborate any of these claims.
The Tribunal did not consider the applicant to be a credible witness, and his evidence was not convincing or consistent on those issues. In his most recent evidence the applicant alleges the Colonel was engaged in a number of criminal activities. Including murder, and had attempted to involve the applicant in those activities as an agent or accomplice. There is nothing beyond the applicant’s own unsubstantiated evidence to demonstrate this ever occurred, and the Tribunal notes the allegations against the Colonel were expanded significantly between the time his protection visa application statement was lodged, and his subsequent statutory declaration in July 2004, in which it was alleged the Colonel asked him to kill a specific individual (a mill owner). His allegations were further expanded in the hearing, when he alleged the Colonel had in fact asked him to be involved in some 10 to 20 further incidents involving murder or criminal activity.
The Tribunal does not accept as credible the assertion that the Colonel asked the applicant to commit up to 20 serious criminal acts including murders, on his behalf. In reaching this conclusion, the Tribunal considers had the applicant been directed on so many occasions to commit such offences, and failed to carry them out, he would be likely to have experienced immediate harm fro the person concerned. It also considers if the applicant’s assertions as to the relationship between himself and the Colonel were as poor as he alleges, it would make it less likely this officer would confide in him about his own criminal activities.
In the Tribunal’s view, given the alleged poor relationship between the two men, seeking to involve the applicant in, or to become knowledgeable about such criminal activities would itself create a very substantial risk for the Colonel. In this context the Tribunal rejects the assertion by the applicant that he would not have been considered a risk to the Colonel until after he left the army, and sought an inquiry into why he had not been paid a salary for a period in the early nineties. In the Tribunal’s view, the inquiry to which the applicant refers is at best simply an administrative inquiry into past pay entitlements, and is more likely to be connected to the circumstances leading to his court martial at which he pleaded guilty to a charge of being absent without leave. In this regard, the Tribunal considers that if, as he claims, he was ever considered a threat to the officer concerned, he would be unlikely to have been able to remain unharmed, particularly in the years where he was subject to the control of the very officer he says he feared. Finally, the Tribunal considers the fact the applicant was also able to remain unharmed for a number of years after being dismissed from the Army further indicates he was not in reality at risk from the Colonel because of alleged information he had about that officer.
The Tribunal does not accept the unsubstantiated claims of the applicant that the Colonel is, or was involved in a religious group, through which he is able to exert influence over members of the army. Similarly the Tribunal also rejects as unsubstantiated, the unlikely proposition that his Colonel was able to ignore directions from more senior officers to him, to allow the applicant to resign from the Army.
There is nothing (beyond his own unsupported assertions) to suggest the applicant possesses information or knowledge which would be so fundamental as to risk a coup in Sri Lanka, bring down the government, or cause the failure of the peace process, and the Tribunal rejects those claims as lacking in credibility. Whilst the Tribunal accepts country information (US Department of State ‘Human Rights Practices’ Report) which indicates atrocities have been committed by security forces in the past, and reports which confirm a prison massacre at Welikade prison in July 1983, there is nothing beyond his own assertion to indicate he was ever present, directly involved in, or knowledgeable as to the circumstances of such events, and the Tribunal does not accept his assertions on those issues. There is also nothing beyond his own unsupported assertions, which the Tribunal does not accept, to suggest … was involved in such activities, either directly or indirectly, or that he ordered the applicant to lie about any aspect of his army service. Country information also suggests that far from being at risk of collapse in the light of revelations of past atrocities, Sri Lankan authorities have undertaken investigations and trials of persons in connection with several high profile cases, including actions against military police, which have been successfully prosecuted before the courts.
The Tribunal considers the fact that the applicant never reported his alleged fears of the Colonel to authorities, (military or civilian) over many years to be relevant. The Tribunal considers that if he genuinely feared harm from the Colonel as claimed, or had been threatened by the Colonel as alleged, he would have been likely to have raised this with authorities to protect himself. He did not do so. In particular, if he was, as he claims, the specific target of a grenade blast in Colombo in 2000, he would have been likely to have prompted his report in the matter to authorities in order to gain protection. Again he did not do so but returned to Thailand for several years where his family was living. Whilst the applicant says the family was residing in that country because of fears for their safety in Sri Lanka, the Tribunal does not accept this was the case, and finds they were residing there because his wife took up a work appointment in Thailand, and the family accompanied her.
The Tribunal does not accept the applicant was the target of a grenade blast in 2000. Beyond his own unsubstantiated claims, there is nothing to suggest the attack even occurred, or if it did, that it was directed at him in particular. His evidence on the issue again lacks credibility. In particular, the Tribunal does not accept police investigating a blast such as he claims occurred, would simply release importance forensic evidence (the car)to him, as he claims or that this would be possible because a former solider he knew was one of the attending police officers. The Tribunal also rejects his assertion that even though he allegedly was the target of a grenade attack, he would have been even remotely interested in retrieving the damaged car, rather than escaping as quickly as possible.
The Tribunal does not accept if the applicant genuinely held fear for his own and his family’s safety that he would have permitted his wife or children to return to Sri Lanka at any stage after they moved to Thailand. This is inconsistent with existence of genuine fear, particularly after the time at which he claims he was the subject of a grenade attack. In reaching this conclusion, the Tribunal does not accept his explanation that because the surname of one of his children on his passport (issued in 1994) was different to his own, that this would make a difference if there was any genuine fear of harm. In any event the Tribunal also notes the passports of his other child and his wife bear his surname, so the argument he seeks to raise has no relevance to his wife and daughter. There is nothing beyond the unsubstantiated claims of the applicant to show his wife or children were ever threatened when they returned to Sri Lanka, and the Tribunal does not accept they were”.
I have deliberately set out in full the passages which I regard as relevant to this application for review, and in particular specifically those passages relevant to the first ground of the claim.
Whether the Tribunal erred in law by requiring the Applicant to corroborate his claims
It is submitted on behalf of the Applicant that where the Tribunal refers to the concept of "unsubstantiated evidence" and further refers as it does in one passage to there being "absolutely nothing to corroborate any of these claims", that the Tribunal has erred by requiring the Applicant to provide some corroboration.
It is noted that both parties have referred to the decision of Hill J in Machmud v Minister for Immigration and Multicultural Affairs (2001) 66 ALD 98; (2001) FCA 1041. The Court in that case dealt with an Applicant who did not attend the Tribunal to give evidence. The Court set out in some detail the Tribunal decision, and in particular the reasons of the Tribunal which included the passage as follows:-
“Although given every opportunity to provide evidence (including oral evidence) to the Tribunal to substantiate her claims, the applicant has chosen not to do so.”
It was in the context of that part of the Tribunal's decision, amongst others, that Hill J in ‘Machmud’ states the following at paragraphs 15 to 17:-
“15 The Tribunal's statement of reasons is, to say the least, not particularly precise. That of course is not a ground of review. It is authoritatively established that the reasons of the Tribunal should not be scrutinised with an eye attuned to error (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 referring, with approval, to the decision of a Full Court of this Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287). It is possible to read the Tribunal as saying that there was no evidence at all before it with the consequence that the applicant had failed to satisfy the Tribunal that she was a refugee. That is not so, in that there was evidence before the Tribunal, namely the applicant's statement. Whether the Tribunal accepted that statement or not was a matter for it. There was also, as Counsel for the applicant says, the independent country information which was evidence from which it was open to the Tribunal to conclude that her claim of religious persecution might succeed.
16 There is also the suggestion on the part of the Tribunal that there is some necessity for an applicant to the Tribunal to "substantiate" claims. If that is intended to suggest that there must be some corroboration given by an applicant, it clearly is erroneous. The word "substantiate" is defined in the Macquarie Dictionary 3rd Edition as follows "1. to establish by proof or competent evidence:... 2. to give substantial existence to. 3. To present as having substance". The ordinary English use might suggest that the Tribunal member did not regard the applicant's statement as being evidence at all but rather required some other evidence to be provided. The sense in which it is used may perhaps also suggest that the Tribunal thought that there was a need for corroboration. If corroboration were necessary there was the country information. But, be this as it may, there certainly is no necessity as a matter of law that an applicant to the Tribunal corroborate, if that is what the Tribunal meant, a statement made.
17 I am conscious of the injunction of the High Court not to construe reasons of the Tribunal pedantically. The Tribunal has a difficult task which it undertakes under difficult circumstances and with inadequate resources in order to perform its obligation to review those decisions which are referred to it. On the whole,
I do not think that the first or third grounds of review are made out, if only because in the last paragraph under the heading "findings and reasons" the Tribunal does refer to there being "meagre evidence available to [it]".
Both parties as stated relied upon the decision of Hill J in Machmud. It is perhaps significant in the context of this ground to note that the Respondent in the written submissions states the following:-
“The Respondent submits that in Machmud the Federal Court observed that an Applicant need not ‘substantiate’ or ‘corroborate’ a statement submitted in support of a Tribunal application. This is because the statement, itself, constitutes evidence capable of providing factual assertions. The Respondent does not dispute this proposition. However, for the reasons which follow is it submitted that the proposition does not assist the Applicant in this case.”
In my view, the passages referred to in the judgment of Hill J may be applied in the present case, and are at least relevant in the consideration of the ground relied upon by the Applicant. However, on a proper reading of the reasons of the Tribunal set out earlier in this judgment, it is my concluded view that the reference in that decision to phrases including "unsubstantiated evidence", "beyond his unsupported assertions", "unsubstantiated claims", "nothing beyond his own assertion", "there [was] nothing beyond his own unsupported assertions with which the Tribunal [did] not accept", and specifically the phrase "there was absolutely nothing to corroborate any of these claims", do not form a basis upon which it could be concluded that the Tribunal has improperly applied as a precondition that the Applicant must substantiate or corroborate the claims before they will be considered by the Tribunal.
I accept as indicated by Hill J in ‘Machmud’ that if those passages were intended to suggest that there must be some corroboration given by the Applicant, then that would be clearly erroneous. Properly read and understood, however, it seems clear to me that when the Tribunal rejected the credibility of the Applicant and otherwise specifically rejected claims made by the Applicant, it did so after analysing the Applicant's evidence.
For example, in drawing the conclusion that it did not consider the Applicant to be a credible witness, it refers to the evidence being "not convincing or consistent". It refers to the Applicant's most recent evidence where allegations were made in relation to the officer being engaged in a number of criminal activities, and notes in addition to there not being anything beyond the Applicant's own unsubstantiated evidence to demonstrate that this ever occurred. It goes on to note that the allegations against the officer were "expanded significantly between the time his protection visa application statement was lodged and his subsequent statutory declaration in July 2004". The allegations then according to the Tribunal were "further expanded in the hearing". The Tribunal then proceeds to deal with the assertions concerning the officer and then states, significantly a finding which was reasonably open to it that:-
“The Tribunal considers, had the applicant been directed on so many occasions to commit such offences and failed to carry them out, he would have been likely to have experienced immediate harm from the person concerned.”
That is just one example extracted above of the reasoning process of the Tribunal which, in my view, is free from error. Simply because the Tribunal refers to not accepting what it described as "unsubstantiated claims" or "unsupported assertions", does not of itself lead to the conclusion that the Tribunal has then improperly imposed a precondition or test or indeed onus upon the Applicant that the claims need to be substantiated and/or corroborated.
To simply refer to "unsubstantiated allegations" is not to suggest that there is a need for assertions or allegations to be corroborated. Where reference is made to the suggestion that the allegations are unsupported or that there is "absolutely nothing to corroborate any of these claims", in my view, is simply an additional statement from the Tribunal having found as it did in some detail after considering the claims that it did not accept the claims as it did not accept the evidence of the Applicant. It is perfectly appropriate for a Tribunal to then seek to adduce in the process further evidence to substantiate the claims, where it has found that the claims made by the Applicant lack credibility.
It seems to me that if for example, having decided that the Applicant himself lacks credibility, the Tribunal was able to draw upon other material which may constitute corroboration, then its conclusion as to the Applicant's lack of credibility may alter. However, to simply say that the claims were unsubstantiated or that there was nothing to corroborate the claims, does not of itself mean that the Tribunal has introduced a new test or precondition or otherwise imposed an onus upon the Applicant to provide corroboration.
It has simply noted that fact after having made conclusions based upon the lack of credibility of the Applicant himself, and in this instance I am satisfied has properly addressed the claims and reached conclusions adverse to the Applicant's credibility after analysing the evidence he presented. The Tribunal has not just drawn an unfavourable conclusion against the Applicant based on a lack of substantiation or corroboration. Rather it has simply noted that as part of the overall context of its analysis of the material.
I see no error in its approach and nor, in my view, in this case could it be claimed that this Tribunal by using the expressions to which reference was made earlier, has somehow suggested that there must be some corroboration given by the Applicant for a claim to succeed. Hence, in my view, this ground should fail.
Failure to consider relevant considerations
It was argued for and on behalf of the Applicant that there are essentially three discrete claims which were all capable, either individually or cumulatively of constituting serious harm according to law. The Applicant had variously claimed having been detained, denied an income and subjected to almost daily threatening calls. Those claims are characterised in the following terms:-
a)for about one year the Applicant was detained at the military base in Colombo without inquiry or pay;
b)for several months the Applicant was forced to survive without pay; and
c)the Applicant was subjected to threatening phone calls, and from late 1999 until he left Sri Lanka the officer concerned would call him on an almost daily basis.
It was submitted that in this case, the Tribunal did not consider these matters under the heading ‘Findings and Reasons’, and did not make any specific relevant findings. Where the Tribunal concluded that there was "nothing in the Applicant's evidence to suggest he experienced such harm in the past", it was submitted that this suggests the Tribunal did consider the claims of the Applicant but did not consider his claims as constituting sufficient evidence, that is, without corroboration and reliance was placed upon the earlier submissions which I have now rejected. It was further argued, however, that the Tribunal simply did not consider these particular claims of the Applicant, and that this constitutes a failure to consider integers of the Applicant's claim and on that ground relief should be granted.
The Respondent has submitted that in relation to each of those discrete claims, that the Tribunal did recite the claims during the course of its decision and ultimately did conclude, as indicated earlier, that there was nothing in the evidence to suggest the Applicant experienced such harm in the past. It was argued that that finding suggests that the Tribunal did consider the claims of the Applicant though did not consider the claims as constituting sufficient evidence which would persuade the Tribunal that the Applicant had experienced such harm in the past.
By referring to the three claims, it was submitted that in this case the Tribunal has considered those claims and it is not required to provide a "line by line refutation" of each individual claim (see Re Minister for Immigration and Multicultural Affairs: ex Parte Durairajasingham (2000) 168 ALR 407 at [65]). It is argued this is particularly so in cases where a Tribunal has found that a witness is not credible.
In my view, given the general and significant adverse findings as to the Applicant's credibility and noting that the Tribunal has incorporated in its decision the three claims referred to by the Applicant, I do not regard it as necessary in a matter of this kind for the Tribunal to then make specific findings as to each and every allegation. It is sufficient, having made an adverse finding as to credibility, for the Tribunal having recited the individual claims to then draw the somewhat broader conclusion that it was not satisfied that the Applicant had suffered or experienced the harm alleged in the past.
In my view, that finding is sufficient to directly address the claims as put by the Applicant that is, as integers of the claim albeit that in this case the Tribunal has not made specific and precise findings in relation to each and every one of these claims, even though it appeared to do so in relation to some other claims. The mere fact that a Tribunal may choose to specifically address individual claims and make findings in relation to those claims, does not mean that where it has made a general finding arising out of claims of harm in the past, that it has failed to consider those individual claims as integers of the application before it. In my view, there is no error of law and this ground should fail.
Failure to properly assess the availability of state protection
Once the Tribunal has drawn a conclusion reasonably open to it that the Applicant has not suffered the harm in the past and has otherwise made significant adverse credibility findings in relation to specific claims made by the Applicant free of error, then it is not necessary nor required that the Tribunal should then assess the availability of state protection. Accordingly, in my view, the third ground should fail.
I otherwise accept submissions made in relation to this issue by the Respondent that the Tribunal did refer to the Applicant's evidence in the course of its decision, and noted the complaint which now seeks to be agitated that there were many police reports against the officer concerned, though the army did not take action. Further, it was noted that before the delegate the complaint was recited as to the difficulties persons had in pursuing protection from the Government against the backdrop of the influence the particular officer had over many people and that he acted outside the law.
Nevertheless, in my view, as I have indicated made significant adverse findings as to the credibility of the Applicant and in general considering the claims put by the Applicant as to past harm, I do not see any error in law on the part of the Tribunal in then failing to proceed to consider in those circumstances and assess the availability of state protection. Hence this ground should also fail.
It follows for the reasons given that 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: 31 January 2006
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