WAJR v Minister for Immigration

[2003] FMCA 337

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAJR v MINISTER FOR IMMIGRATION [2003] FMCA 337

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Sri Lanka – RRT decision based upon adverse credibility findings – no reviewable error found.

Migration Act 1958 (Cth), s.474

Applicant: WAJR

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: WZ61 of 2003

Delivered on: 30 July 2003

Delivered at: Perth

Hearing date: 30 July 2003

Judgment of: Driver FM

REPRESENTATION

Applicant appeared in person

Counsel for the Respondent: Mr J R Allanson

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

WZ61 of 2003

WAJR

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 31 January 2003.  The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from Sri Lanka and arrived in Australia on 15 September 2001 by boat, when he was taken into immigration detention.  On 19 September 2002, the applicant lodged an application for a protection visa, which was refused.  He appealed from that decision to the RRT, which confirmed the refusal.

2. The background to the present application in this Court is set out in paragraphs 1 through to 6 of written submissions filed on 25 July 2003 by Mr Allanson, for the respondent Minister.  I accept that statement of background facts for the purposes of this decision and adopt those paragraphs:

   The applicant’s claims for refugee status were initially considered at the Christmas Island Processing Centre. It was then found after assessment and review that the applicant did not meet the criteria for protection under the Refugees Convention: see decision on review at 36.

   On 19 September 2002, the applicant applied for a protection visa: see 44-63.  In a statement in support of that application (at 64-66) the applicant said:

   a)he is from Sri Lanka, his father is Sinhalese and his mother Tamil;

   b)the applicant had engaged in political activities for the United National Party (UNP) youth organisation, and had been the chairman of the youth organisation;

   c)the applicant’s family was political, and his father had been a member of a provincial council, and had also been chairman of a divisional council;

   d)the applicant had been formally involved in politics from when he left school and had been expected to follow his father into politics;

   e)during the 1998 presidential elections in Sri Lanka he and his family had been subjected to threats;

   f)the applicant also believed his business had been sabotaged by political opponents;

   g)in March 2001 at a UNP rally, the applicant and his father had been attacked and beaten. When he made a complaint to the police, the applicant had been detained for two days, during which he was left naked in the cells, interrogated and beaten. His father had been able to secure his release only by approaching the local member of the opposing political party and agreeing to cease his involvement in politics if the member would intervene;

   h)after release, the applicant went into hiding for some time before he was able to leave Sri Lanka. He feared that he would again be subject to violence if he returned to Sri Lanka and that the police would not protect him.

   On 13 November 2002, the delegate of the respondent made a decision refusing the application: see reasons at 79-104, letter at 105.

   The applicant applied for review of the decision of the delegate. A hearing was set for 20 December 2002, but could not proceed, and a further date was set for 6 January 2003. During the hearing the applicant handed up 3 documents (set out at 189 in the reasons of the RRT).

   On 13 January 2003, the Refugee Advice and Casework Service lodged a written submission on behalf of the applicant with the RRT: see 127-132 and attachments at 133-165 . In that submission they set out the claims earlier made by the applicant and submitted further:

   a)the applicant’s claims lie for reasons of political opinion and imputed political opinion;

   b)while the RRT had stated there is a functioning legal system in Sri Lanka, there is still widespread corruption;

   c)while the UNP were in power in Sri Lanka, the president was from the PA party and still had far reaching powers including control of the security and armed forces, and UNP supporters could not be reassured of safety;

   d)in particular, the police were subject to political influence so that the applicant could not rely on the authorities to protect him.

   On 17 January 2003, the RACS lodged further documents on behalf of the applicant including a copy of his identity card and a letter said to be from a member of parliament.

3. Briefly, the applicant's claim for a protection visa were based upon a fear of persecution arising from political activities in Sri Lanka.  The applicant claimed that he was persecuted as a result of his activities for the United National Party (the UNP) in Sri Lanka; that his father had been a UNP leader and that he was following his father's career.

4. Mr Allanson deals with the decision of the RRT in his written submissions at paragraphs 7 through to 10 of those written submissions.  Again, I accept that description of the RRT as accurate and adopt those paragraphs for the purposes of this judgment:

   On 31 January the RRT made a decision affirming the decision of the delegate not to grant a visa: see reasons at 178-193). It found (at 191[2]):

   a)the applicant’s evidence to have been generalised and vague, that he was unable or unwilling to articulate any specific details of his claims and describe what his political activities had been or details of the incidents he claimed had happened ;

   b)the RRT was unable to accept that the applicant had suffered persecution by reason of his political opinion, or that he had a real chance of suffering persecution for that opinion if he returned to Sri Lanka.

   The RRT also expressed grave doubts about the applicant’s identity, referring to discrepancies in the copy of the applicant’s identity card which had been handed up, including that the applicant’s appearance did not match that in the photograph on the identity card: at 191[53].

   The applicant had been unable to explain the policies and agenda of the UNP, even though he had claimed to be the son of a politician and himself the chairman of the youth organisation and active in politics. The RRT found that the applicant knew nothing of the UNP except in the most general terms.

   The RRT also did not accept letters handed up by the applicant as genuine: at 193[57].

   From those findings the RRT concluded (at 193[58]) that the applicant had fabricated his claims of political association with the UNP. As a consequence it did not accept the applicant had suffered violence or harassment or persecution, or that he was subject to adverse attention from the PA and had been detained and mistreated as he had claimed. This led to the finding that the applicant did not have a well founded fear of persecution as he had claimed.

5. In simple terms, the RRT did not believe the applicant's claims.   Three issues in particular swayed the presiding member.  The first was that the presiding member had doubt about who the applicant claimed to be.  The presiding member was dissatisfied with the reliability of evidence of identity presented by the applicant.  Secondly, the presiding member did not accept that the applicant is or ever was a member of the UNP or chairman of a youth association.  The presiding member found that the applicant displayed a poor knowledge of the UNP and that this failed to establish to the satisfaction of the presiding member that the applicant had been involved in UNP activities, at least at the level which he claimed.  Thirdly, the presiding member rejected documents produced by the applicant in support of his claims.  The presiding member found that these documents had probably been fabricated in support of the application for a protection visa.  At paragraph 58 of the RRT decision (court book, page 193) the presiding member drew these considerations together in making the following finding:

   In light of his vague and generalised evidence,  and his complete lack of any specific details, I am unable to accept that the applicant is or ever was a son of a UNP politician, a member of the UNP, had any association with the UNP or was a chairman of a UNP youth association.  I am of the view that the applicant has fabricated his claims of such an association to provide for himself the profile of a refugee.  As a consequence of this finding I am unable to accept that the applicant suffered any violence, harassment or persecution as a result of his claimed UNP association.  To this end I am unable to accept that he was subject to threats and violence, that his business was sabotaged, that he was of adverse attention to the leader of the opposition party, that he was detained and mistreated by police, that he was threatened with death by thugs of another political party or that his house was invaded or burnt down, depending on the account given, by opposition people. 

6. It is plain that the RRT decided this matter on the basis of its adverse findings on credibility.  The RRT did not accept that the claims of persecution put by the applicant were genuine, which led to the rejection of the protection visa application.  The application for review originally filed in the Federal Court and transferred to this Court for hearing provides the following grounds: first, that the RRT exceeded its jurisdiction in making its decision to affirm the respondent's decision; and secondly, that the RRT constructively failed to exercise its jurisdiction.  No particulars of those grounds are given, although the applicant made oral submissions in support of his application at the hearing today.

7. The applicant submits that the RRT made several factual errors in coming to its decision.  The applicant submits that the presiding member wrongly rejected documents as fabricated.  He refers to a document received from the officer in charge of a police station in Sri Lanka and to paragraph 45 of the RRT decision, where the presiding member noted that no name or rank of the officer was provided.  The applicant submits that the letter was signed by a person described as an "officer in charge", which was a police rank in Sri Lanka.  The applicant also notes that he provided letters from members of parliament in Sri Lanka where the rank of the author was given.  The applicant submits that the RRT presiding member failed to read his documents properly in order to reach appropriate conclusions on them.  The applicant also submits that he did explain to the presiding member the policies of the UNP in sufficient detail to satisfy the presiding member of his prior involvement, although he admits that the description he gave was general in nature. 

8. In his final submissions, the applicant stated that the approach taken by the RRT was an excessively narrow approach to the interpretation of the Refugees Convention and that a more generous approach should have been taken.

9. The matters raised by the applicant in submissions essentially go to the merits of the RRT decision.  I explained to the applicant that I was not in a position to review the merits of that decision.  It is possible that jurisdictional error may be demonstrated if jurisdictional facts are not found, or not properly found by a decision maker under the Migration Act 1958 (Cth) (“the Migration Act”). It is also possible that an applicant could establish that no evidence exists to support findings made by a decision maker going to jurisdiction. It is also possible that an applicant might establish that the decision maker misunderstood his or her task or did not ask himself or herself the right questions in coming to conclusions for the making of decisions under the Migration Act.

10. However, the applicant has been unsuccessful in these proceedings in demonstrating any jurisdictional error.  The decision of the RRT is logical.  It is plain that there was material before the presiding member which reasonably supported the adverse conclusions reached by him on credibility.  It is plain that the presiding member understood the task that he had to perform and asked himself the correct questions.  The adverse findings on credibility made by the presiding member were reasonably open to him on the material before him.  No jurisdictional error has been demonstrated by the applicant and none is apparent to me from my perusal of the record of the RRT decision.

11. It is true that the approach by decision makers under the Migration Act to the assessment of refugee claims has become more strict in recent years. However, the approach taken by the presiding member was in accordance with the Refugees Convention and the Migration Act. I find that no jurisdictional error was committed by the presiding member in making his decision. In addition, the Hickman provisos to the privative clause in s.474 of the Migration Act are satisfied.

12. Accordingly, I will dismiss the application. 

13. On the question of costs, Mr Allanson has sought an order for costs in accordance with the general principle that costs follow the event.  He has submitted that an order in the sum of $3,500 would be appropriate bearing in mind that this was a matter of average complexity.  The applicant has submitted that he is impecunious and could not pay an order for costs, noting that he is held in immigration detention.

14. However, there is ample authority both from this Court and from the Federal Court that impecuniosity of a party is not in itself a reason to refrain from making a costs order.  I am satisfied that an order for costs should be made in favour of the respondent Minister, noting that the Minister has been wholly successful and the applicant wholly unsuccessful.  I am also satisfied that an order fixed in the sum of $3,500 would be appropriate.  I will order that the application be dismissed and that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,500.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  12 August 2003