WZAOD v Minister for Immigration

Case [2011] FMCA 327


FEDERAL MAGISTRATES COURT OF AUSTRALIA

WZAOD v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 327
MIGRATION – Refugee Review Tribunal – protection visa – judicial review – applicant born in Cameroon – applicant became South African citizen – riots in South Africa – xenophobic violence – whether fear of persecution – whether real chance of future persecution – past persecution – whether irrelevant considerations personal to applicant – whether factual basis for Tribunal decision – whether Tribunal decision rational or logical.
EVIDENCE – Corroboration – corroboration in relation to alleged past persecution – whether corroboration required.
ADMINISTRATIVE LAW – Judicial review – whether decision rational or logical – whether inference reasonably open.
Migration Act 1958 (Cth), ss.65, 474(1), 476(2)(a)
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225; [1997] HCA 4
ApplicantNABDof 2002 NABD v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1142; [2005] HCA 29
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1; [2004] HCA 18
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
MZXSA v Minister for Immigration and Citizenship (2010) 117 ALD 441; [2010] FCAFC 123
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2
S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71
SBZF v Minister for Immigration and Citizenship [2008] FCA 1486
SZNDJ v Minister for Immigration and Citizenship [2010] FMCA 139
SZOHK v Minister for Immigration and Citizenship [2010] FCA 1291
VWBF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 154 FCR 302; [2006] FCA 851
Warnakulasuriya v Minister for Immigration and Multicultural Affairs (unreported, Federal Court of Australia, VG 22 of 1997, 6 April 1998)
WZAOB v Minister for Immigration and Citizenship [2011] FCA 162
J Gregory and J Gothard (Eds), Historical Encyclopaedia of Western Australia (Crawley: University of Western Australia Press, 2009)
Applicant: WZAOD
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: PEG 244 of 2010
Judgment of: Lucev FM
Hearing date: 14 April 2011
Date of Last Submission: 14 April 2011
Delivered at: Perth
Delivered on: 13 May 2011

REPRESENTATION

Counsel for the Applicant: Mr N Ekanayake (pro bono)
Counsel for the Respondents: Mr A Gerrard
Solicitors for the Respondents: Australian Government Solicitor

ORDERS

  1. That the application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 244 of 2010

WZAOD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Details
AGLC
WZAOD v Minister for Immigration [2011] FMCA 327
Case
[2011] FMCA 327
Decision Date

CaseChat Overview and Summary

In the case of WZAOD v Minister for Immigration, the applicant contested the decision of the Minister for Immigration to refuse his application for a protection visa. The central issue before the court was whether the Tribunal erred in its assessment of the applicant's evidence, specifically regarding the lack of corroboration for his claims of persecution and the credibility of his testimony. The first respondent argued that the Tribunal was entitled to weigh the evidence and determine the reliability of the applicant's claims, including the necessity for corroboration.

The court examined the principles established in previous cases, such as Warnakulasuriya and MZXSA, which support the Tribunal's authority to evaluate the credibility of an applicant's evidence and to require corroboration where appropriate. The court held that the Tribunal's decision to reject the applicant's claims due to the lack of corroboration did not constitute a jurisdictional error. The absence of corroboration was a significant factor in the Tribunal's decision, but it was not the sole basis. The weight given to such factors is generally a matter for the decision-maker, and the court is not inclined to substitute its judgment for that of the Tribunal unless there is a clear error in the application of legal principles.

Ultimately, the court dismissed the application, affirming the Tribunal's findings regarding the applicant's credibility and the lack of corroboration. The decision underscores the Tribunal's discretion in assessing the reliability of an applicant's evidence and the limited scope for judicial review in such matters.

Orders

Orders of the court

1.

That the application be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The first respondent submits that:a)MZXSA and Warnakulasuriya do not support an implication that sole reliance on lack of corroboration to reject an applicant’s evidence may constitute jurisdictional error;b)in Warnakulasuriya, the Federal Court rejected a submission that the Tribunal erred in requiring an applicant to prove aspects of his case by a process of corroboration or supporting evidence, citing the following passage in the Judgment:The submission fails to recognise that one of the functions of the Tribunal is to make determinations of fact based on the evidence that is before it. In Guo, in the majority judgment at 570 it was said that "the Tribunal (is) entitled to weigh the material before it and make findings before it engaged in any consideration of whether or not (the applicant's) fear of persecution on a convention ground was well founded.": see also Wu Shan Liang at 293 per Kirby J.This must admit of the possibility that the Tribunal will not accept the accuracy of certain "facts" unless they are corroborated in some way. The acceptance or rejection of “facts” is a matter for the Tribunal and no error of law will be demonstrated merely because the Tribunal has decided that certain evidence will not be accepted by it unless it is corroborated. Some “facts” may be so implausible that they should not be accepted. An applicant may appear to lack credibility and in that circumstance the Tribunal may not be disposed to accept his or her evidence unless that evidence [is] corroborated by some independent source. If the Tribunal forms the view, for one reason or another, that evidence is unreliable and should be rejected unless corroborated that does not amount to an error of law. On the contrary, it suggests that the Tribunal is taking seriously its obligation to evaluate the evidence that is before it.[34] (emphasis added)[34] Warnakulasuriya at page 7 per Finkelstein J.c)the Warnakulasuriya approach was endorsed by the Full Court of the Federal Court in MZXSA where the Full Court:i)rejected a submission that the Tribunal had imposed an unreasonably high standard of satisfaction by insisting on corroboration and failing to take into account the protection visa applicant’s written and oral evidence as primary evidence; andii)found that a consideration of the transcript as a whole and the decision record demonstrated that the Tribunal did not proceed on the basis that, as a matter of legal standard, the applicant’s evidence was required to be corroborated;[35][35] MZXSA ALD at 459-460 per Keane CJ, Perram and Yates JJ; FCAFC at paras.90-92 per Keane CJ, Perram and Yates JJ.d)the Tribunal was presented with a claim by the applicant that his shop had been destroyed by looters on 22 May 2008 as a result of xenophobic violence, and that the Tribunal noted that the applicant had consistently made this claim, and the claim was generally consistent with the country information.[36] However, the Tribunal went on to state:[36] CB 274.Equally however the applicant’s account could easily have been created after the fact based on the news reports widely circulated at the time. Having considered all of the evidence, the Tribunal has formed the view that the applicant’s store was not destroyed as claimed by the applicant because he has not provided any independent proof of the existence of, or of the destruction of, his shop in Dunoon. For example he says that he reported these events to the police in central Cape Town and that he received a docket; however he no longer has the docket.[37][37] CB 274-275.e)in relation to the issue of whether the applicant’s store was in fact looted, the Tribunal weighed up all of the evidence before it, including that the applicant’s evidence had been consistent and was generally consistent with country information but, in the final analysis, decided that the absence of corroborative evidence in circumstances where the applicant had claimed to report the matter to the police but misplaced any evidence of this, was determinative;f)the applicant’s assertion that “the Tribunal did not make any unfavourable assessment of the evidence” is at odds with the Tribunal’s statement that:Further the applicant’s claim for protection centres on the fact that he is from Cameroon, a fact which he claims is obvious to indigenous South Africans. Against this claim the Tribunal has difficulty accepting that although the applicant says he got close enough to his shop to see that it was being looted on 22 May 2008 and to see who was looting it, he says that he was not recognised by any of the looters. The applicant submitted to the Tribunal that the looters did not recognise him because he was not in the car he usually drove to the shop. Equally however one would expect that the sight of a new car in the area may have sparked interest from at least one of the more than 50 locals in the street.[38][38] CB 275.g)the views expressed in Minister for Immigration and Multicultural Affairs v Eshetu[39] are apposite here:It was accepted by the respondent that in accordance with the decision of this Court in Minister for Aboriginal Affairs v Peko-Wallsend the weight to be accorded to a relevant consideration by an administrative decision-maker is generally a question for the decision-maker and not the Court. Although absence of corroboration did loom large in the Tribunal’s decision, it was not the only basis upon which the Tribunal proceeded. However, even if it were, the weight to be accorded to that factor was a matter for the Tribunal and not for the Federal Court.[40] (emphasis added)h)the Tribunal’s:i)approach to the assessment of the applicant’s evidence was one it was fairly entitled to undertake; andii)findings in relation to the credibility of the applicant were a fact-finding task within its jurisdiction,and that any grievance as to the Tribunal’s conclusion in this regard, or as to the weight attributed to any piece of oral evidence, is a grievance as to the merits of the Tribunal Decision.[39] (1999) 197 CLR 611; [1999] HCA 21 (“Eshetu”).[40] Eshetu CLR at 669 per Callinan J; HCA at para.184 per Callinan J.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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