FEDERAL COURT OF AUSTRALIA

Londono-Castaneda v Minister For Immigration & Multicultural Affairs [1999] FCA 230

MIGRATION - review of Refugee Review Tribunal decision refusing grant of a protection visa - applicant citizen of Colombia - contradictory evidence given by applicant in regard to the source of his alleged fear of persecution - whether Tribunal erred in its assessment of the applicant's credibility.

Migration Act 1958 (Cth)

Emiantor v Minister for Immigration & Multicultural Affairs (1997) 48 ALD 635

Kopalapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 1126

JAIRO LONDONO-CASTANEDA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 1014 OF 1998

MOORE J

16 MARCH 1999

SYDNEY

THE COURT ORDERS THAT:

1.                  The application is dismissed.

2.                  The applicant pay the respondent's costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application by Jairo Londono-Castaneda (“the applicant”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 1 September 1998.  The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”) refusing to grant the applicant a protection visa.  The criterion for the grant of such a visa is that the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (“the Convention”).

2                     The applicant is a citizen of Colombia who arrived in Australia in 1997.  On 24 July 1997 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs.  On 17 November 1997 the application was refused by a delegate of the Minister.  Both the delegate and the Tribunal considered the circumstances of the applicant and whether the applicant was a refugee.  Art 1A(2) of the Convention contains, for present purposes, the definition of refugee.  It provides:

… the term “refugee” shall apply to any person who;

…

(2)               owing to a 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 in being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it.

3                     The substance of the applicant's case before the Tribunal was that he feared persecution if returned to Colombia because of his political opinion.  The Tribunal found that the applicant's account of his past experiences in Colombia, to the extent they might give rise to a well founded fear of persecution were he to return, was not credible and did not accord with independent evidence.

The Tribunal's reasons

4                     The Tribunal commenced its reasons by considering the material presented by the applicant in written submissions to the Department and to the Tribunal, as well as oral evidence given before the Tribunal.  The Tribunal noted that during 1997 the applicant had appointed an adviser to act as his agent who submitted various documents to the Department on the applicant's behalf.  The Tribunal observed that there were numerous internal inconsistencies between the submissions provided by the applicant and those prepared on his behalf by the adviser.  The Tribunal considered each version of events in turn.

5                     The applicant’s account in his initial application for a protection visa was that he had lived his whole life in Risaralda, Colombia and from 1992 to 1997 had run his own transport business in that area.  He had had eleven years of schooling and had a command of written and spoken Spanish and English.  The information said to support the application was summarised by the Tribunal as follows:

·        the applicant had started working with the Colombian Liberal Party in 1992;

·        his problems had begun in 1996 when "people had started to push [him] to go out of the community" because he was a community leader;

·        in 1996 his problems had peaked and he had asked for police protection but had been told that the police could not protect everyone;

·        if he were to return to Colombia he would be killed "because I'm the party of them";

·        his enemies were "anti-government forces".

6                     The statement prepared with the assistance of the applicant's adviser was summarised by the Tribunal as follows:

·        he had been working for the Liberal Party;

·        in 1996, when the election campaign had begun, he had decided to switch his loyalties to the Patriotic Union (“UP”) (also known as the Communist Party)

·        in 1997 he had organised a large rally with a banner reading: "UP - Support Us", at which he had publicly spoken of his disenchantment with the Liberal Party;

·        in 1997 he had received a telephone call in which he had been threatened with death for supporting the UP.  He had initially treated this as a joke;

·        he had begun noticing that municipal government officials had begun treating him with reserve and not helping him as they once would have because of his decision to switch parties;

·        in 1997 he had received a further death threat; his mother had become worried; he had received another telephoned message that he would be killed if within two months he had not stopped his UP work; graffiti signifying his death had been painted on a wall;

·        he had then decided to come to the police and ask for help;

·        his enemies might have been "the political leaders [I] helped in the past or persons from the Government or someone who bears resentment towards the UP".

7                     The Tribunal noted that it had asked the applicant at the hearing why there was such a difference between the statement he had written and that written with the aid of an agent.  The Tribunal put to the applicant that given his later evidence, the UP would have been uppermost in his mind and its omission from the first statement was curious.  The applicant responded that the statement had been made in a rush and that he had only written down facts "about the people who were working with me".

8                     The applicant gave evidence to the Tribunal that he had decided to leave the Liberal Party in 1996 for the UP because there had been little prospect of him being able to get a government job as there were many others ahead of him in the race for such positions.  The Tribunal indicated it understood this evidence to mean that the reason for changing parties was that the applicant wanted a seat on the city council, more money and status.  The Tribunal also asked the applicant who his enemies were and he responded that "we suspect it's the Government".  The Tribunal put it to the applicant that his first statement indicated that his enemies were "anti-government" forces, to which he responded that his command of English was faulty and he had in fact been referring to the paramilitary forces commonly seen as agents of the Colombian Government.

9                     The applicant told the Tribunal that in 1996 he had become the second-ranking UP candidate for the local council and had been hoping to get a seat in the next nationwide council elections, which he said were held in May 1998.  When the Tribunal suggested that the local and municipal elections had in fact been held in October 1997, the applicant disagreed.

10                  The Tribunal asked the applicant what he knew about the UP itself.  The applicant was unable to name any of the party's leaders, stating that there were no leaders because everyone had been killed.  The Tribunal noted that although the deaths of several prominent party members had been widely reported, the applicant was able to name only one presidential candidate that had been killed.  He could not say when the UP had been founded or by whom.  The applicant told the Tribunal that he did not have any knowledge of the UP because he had not really been involved with it, his priority being only to gain a council seat and its benefits.  The Tribunal quotes the applicant as saying that: "My intention was to be an important Council member and I saw this as a possible [way to gain] access [to such a position] … I don't consider the party too much."

11                  In the section of its reasons titled "Findings and Reasons" the Tribunal said it believed the applicant had fabricated significant aspects of some claims in order to ensure the success of his application for a protection visa.  The Tribunal said that it did not accept the explanation given by the applicant at the hearing about why his first statement mentioned his Liberal Party membership only.  The Tribunal said that it could not understand why the applicant had not stated at the outset that his claimed UP membership had caused death threats, given that

… it is well known that thousands of UP candidates and party workers have been murdered over the years in Colombia … and, therefore, citing UP membership could have provided a strong argument at face value for gaining a protection visa.

12                  The Tribunal also found that the applicant's contradictory statements about the identity of his enemies affected his credibility, and it did not accept that the mistake could have arisen because of a poor knowledge of English.  The Tribunal noted that the applicant possessed sufficient knowledge of English at the hearing to understand many of the Tribunal's questions before the interpreter had translated them into Spanish.  It concluded that the level of English demonstrated by the applicant could not have caused such a basic error in identifying his enemies.  The Tribunal also noted an inconsistency between the dates on which the applicant claimed to have first encountered threats and opposition.  The applicant's written statement claimed that a community push against him had begun in 1996, whereas at hearing he said that it had happened between 1982 and 1984.  The Tribunal made similar findings in relation to the discrepancies between the election date alleged by the applicant (May 1998) and the actual date documented in independent information before the Tribunal (October 1997).

13                  It was in relation to his knowledge of the UP that the Tribunal was most critical.  The Tribunal said:

If he had stood as a UP candidate and had held at least one pubic rally, if he had persisted with his campaigning for months despite death threats against him, I would consider that he would have had considerable knowledge of, and dedication to, the party.  It is fantastical to assert that he had never bothered to find out about the party because he had seen it only as a vehicle for obtaining a Council position.  Because of the dangers they often face, UP candidates are committed to their party beliefs.  They would not be ignorant of the party, as this applicant was.

14                  The Tribunal noted an extensive list of independent information to which it had referred in its consideration and determination of the applicant's claims. 

Issues in these proceedings

15                  The applicant has not had the benefit of legal assistance in formulating his application for judicial review and making submissions in support of it at the hearing.  In an amended application for review, filed 20 November 1998, the applicant stated that he is aggrieved by the decision of the Tribunal because if returned to Colombia he will be a target of persecution by paramilitary forces indirectly supported and assisted by high ranking officers of the Colombian Army.  The applicant stated that it is his affinity to the party political opinion of the UP that puts him at risk.  The applicant contended in the application for judicial review that the Tribunal erred in the following respects:

(A) PROCEDURAL FAIRNESS:

The Tribunal failed to accept a self-corroboration of facts made by the applicant in a written statement and answers given in an interview conducted by a Tribunal's Officer.  Therefore the decision is biased.  In addition, the applicant should have given an opportunity to respond to such decision.  At the interview the applicant knew that the Officer did not agree with his response, however, he did not know the base or argument of the refusal to grant a Protection Visa.

(B) JURISDICTION ERROR:

The Officer acted beyond his jurisdiction.  The law does not given him the power to speculate into an applicant's case, he is entitled to make reasonable judgments, however, it is not his function to decline an application only because the applicant did not answer in an appropriate way due to circumstances out of his control and without a solicitor to ask for advice.  A self corroboration written and verbal statement presented by the applicant ought to be taken into consideration as a legally relevant factor even on facts for which there is no evidence.  Therefore, the decision must be set aside, the decision to give the status of refugee under the UN Convention for Refugees to the applicant is beyond his power.

(C) ERROR OF LAW:

DIMA and the Tribunal's Officers have misinterpreted the word 'protection' with 'investigation'.  The Department refused to grant a Protection Visa to the Applicant, because according to their remarks, the applicant is receiving 'protection' from the authorities of his country in accordance to the evidence presented by the applicant.  The evidence indicates that the applicant incidents are under 'investigation'.  Therefore, the Police's report did not mention that the applicant would receive 'protection' in accordance to definitions given by the UN Convention for Refugees.

16                  The applicant also contended that the decision of the Tribunal demonstrated "bad faith" or "actual bias".  This is said to arise because the Tribunal did not show "consideration and respect on the applicant self corroboration" and by "speculating on the applicant credibility of his self corroboration".  The applicant further alleged that the Tribunal subjected him to "inquisitorial questioning" that is in violation of human rights. 

Conclusion in application for judicial review

17                  At the hearing in the Court the applicant was, by leave of the Court, represented by Mr Ramon A Reyes Gonzalez who described himself as a volunteer community worker working for the L'Amer-Aussies Multinational Refugee Foundation which apparently has offices in Leichhardt, Sydney.  Mr Reyes Gonzalez helped the applicant prepare the application for judicial review and also a document purporting to be an affidavit of the applicant which was filed on 17 November 1998.  The affidavit is, in large measure, argumentative though it does, in some respects, deal with the issues of fact proffered by way of explanation for the inconsistencies identified by the Tribunal.  However those explanations do not differ, in my opinion, in any material respect from those the applicant gave to the Tribunal itself.

18                  It appears the substantial complaint made by the applicant is that the Tribunal erred in forming the view it did about the applicant’s credit.  While that complaint was expressed in various ways in the application for judicial review and in oral submissions it is nonetheless the gravamen of the applicant’s case.

19                  The issue of how the assessment of the credibility of an applicant for a protection visa might be undertaken has recently been considered by a Full Court of this Court in Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126.  The Full Court was dealing with an appeal from a judgment of Merkel J who had considered the same issue in an earlier case, Emiantor v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 635.  In Emiantor Merkel J had said:

The approach of the RRT to the credibility issues was open to it on the material, was based on rational grounds and was arrived at after consideration of matters that were logically probative of the issue of credibility.   In these circumstances I do not accept the contentions of the applicants that the RRT erred in law in relation to these findings or that the findings were open to challenge on any other reviewable ground.  That conclusion is important to the outcome of the review as it must follow that the findings of RRT as to the past events relied upon to support the claims for refugee status must be accepted as the starting point for the application of the ‘real chance’ test. (at 649)

20                  These observations were referred to with approval by the Full Court in Kopalapillai which said the following about the assessment of the credit of an applicant for a protection visa:

Whilst a decision maker concerned to evaluate the credibility of the testimony of a person who claims to be a refugee in Australia will need to consider, and in many cases consider sympathetically, possible explanations for any delay in the making of claims, and for any evidentiary inconsistencies, there is not a rule that a decision maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for the delay or inconsistency (S Taylor (1994) 13 UTLR 43).  Nor is there a rule that a decision maker must hold a “positive state of disbelief” before making an adverse credibility assessment in a refugee case.  The reference by Foster J, sitting as a member of the Full Federal Court in Guo’s case at p 191, to a requirement for a “positive state of disbelief” was not directed to this issue of the determination of credibility, but rather to the question of when an adverse credibility finding will logically found a positive finding that a particular fact asserted by the witness does not exist.

The primary judge, in giving consideration to the appellant’s submission that the RRT adopted a legally flawed approach to the assessment of his credibility, repeated observations earlier made by him in Emiantor v The Minister for Immigration and Ethnic Affairs (Federal Court of Australia, Merkel J, unreported, 3 December 1997).  His Honour expressed the view that the same observations could be made as to the RRT’s approach to the credibility issues in the present case.

The Full Court of the Federal Court has expressed agreement with his Honour’s treatment of the credibility submissions in Emiantor’s case and found no error in his approach (Emiantor v The Minister for Immigration and Multicultural Affairs, Full Court of the Federal Court of Australia, unreported, 20 July 1998).

21                  In the present case the approach adopted by the Tribunal in assessing the applicant’s credibility was a rational one and was made by reference to material which supported its ultimate conclusion.  The affidavit of the applicant filed in these proceedings and a document tendered on his behalf concerning the cessation of operations of the UP in March 1997 (at least in the municipality of Pereira) does not alter the factual basis upon which the Tribunal came to doubt the applicant’s credibility.  I have already set out in detail why the Tribunal formed the view it did and it is unnecessary to repeat it.  At one stage it was suggested that the Tribunal had failed to put to the applicant material upon which it later relied in its negative assessment of the applicant’s credit: see Meadows v Minister for Immigration and Multicultural Affairs [1998] FCA 1706.  However there is nothing I can discern from the Tribunal’s reasons that suggested it failed to raise with the applicant material it should have put having regard to the way it undertook the review.

22                  The application for judicial review is dismissed with costs.

Associate:

Dated:              16 March 1999