FEDERAL COURT OF AUSTRALIA

Applicant VEAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1545

Federal Court of Australia Act 1976 (Cth)

Migration Act 1958 (Cth)

Minister for Immigration, Multicultural and Indigenous Affairs v SLGB (2004) 207 ALR 12

NADR v Minister for Immigration, Multicultural and Indigenous Affairs (2003) FCAFC 167

Applicant A233 of 2003 v Refugee Review Tribunal [2004] FCA 666

APPLICANT VEAT v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

VID 408 of 2004

SELWAY J

27 OCTOBER 2004

MELBOURNE

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant to 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 appeal from a decision of the Federal Magistrates Court of Australia in Applicant VEAT of 2002 v Minister of Immigration and Multicultural and Indigenous Affairs [2004] FMCA 126.  The Chief Justice of this Court has determined, pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth) (‘the FCA Act’), that the appeal should be heard by a single judge. 

2                     The appellant is a citizen of Sri Lanka.  On 4 March 2000 he came to Australia.  On 3 April 2000 he lodged an application for a protection visa.  In order to obtain such a visa the respondent (‘the Minister’) had to be satisfied that Australia owed protection obligations to the applicant, see s 36(2) of the Migration Act 1958 (Cth) (‘the Act’).  In general terms the Minister had to be satisfied that:

‘Owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion (the appellant) 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 and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.’

3                     The appellant claimed that he had a well-founded fear of persecution from the Sri Lankan security forces and others.  He said that the basis of that fear was his actual and imputed political opinions.  He claimed to be a supporter of the United National Party (‘the UNP’), a Sri Lankan political party, and that he was persecuted for that reason by followers of the People’s Alliance (‘the PA’).  He also claimed that the security forces wrongly believed that he was a supporter of the Liberation Tigers of Tamil Eelam (‘the LTTE’), and that he was persecuted by the security forces for that reason.

4                     The appellant’s application was rejected by a delegate of the Minister.  The appellant sought a review from the Refugee Review Tribunal (‘the Tribunal’).  The Tribunal delivered its decision on 16 May 2002.  It affirmed the delegate’s decision not to grant a protection visa.  The Tribunal did not accept that the appellant was creditable, although it did accept that he was a member of the UNP.  It did not accept that he suffered the various incidents of persecution that he had claimed.

‘…the Tribunal has come to the conclusion that the applicant is not a credible witness.  The applicant had to be prompted to recall a number of his claims, he changed his mind about when things had happened during the course of the hearing and his recollection of when political events he said he had been involved in took place was frequently inaccurate.’

5                     The Tribunal did not accept the specific allegations made by the appellant.  For example, he claimed to have been assaulted in 1998 following the elections in the western province of Sri Lanka.  The Tribunal found that those elections occurred in 1999, and noted that:

‘His inaccurate recollection of the year in which the election was held gives the Tribunal cause to doubt the extent of his political activity, and therefore to doubt the truth of his claims to have been persecuted following the election because of his political activism.’

6                     The appellant claimed that he was arrested and tortured in 1996.  As to that claim the Tribunal commented:

‘The Tribunal’s doubts as to the truth of the applicant’s claim to have been arrested and detained were compounded by his statement at the hearing that he was arrested in 1996 following the Local Council elections.  When it was pointed out to him that this was not consistent with his previous claims, he changed his evidence to say that the arrest took place on 21 May 1998 after the Provincial Council election.  He offered no explanation for having advanced inconsistent dates.  Furthermore, his explanation at the hearing of the manner in which he was arrested was inconsistent with his previous claims, and again when this was pointed out to him, he simply changed his evidence without explanation.  The applicant’s inability to accurately recall key elements of his claim gives the Tribunal cause to disbelieve that he was arrested, detained and tortured and that a bribe was paid to secure his release.’

7                     The appellant claimed that his arrest was not because of his membership of the UNP but because of a false belief by the security forces that the appellant was a member of LTTE.  The Tribunal dealt with that aspect of the claim as follows:

‘As the Tribunal does not accept that the applicant was arrested and detained, it does not accept his claim that the reason for his arrest was that he was suspected of being involved with the LTTE because he had Tamil employees and associates.  The applicant had to be reminded at the hearing that he had been accused of LTTE involvement when he was arrested, and the fact that the Tribunal had to prompt him to recall what should have been a significant claim gives the Tribunal further cause to disbelieve the applicant.

As the Tribunal does not accept that the applicant suffered persecution for reason of his political opinion or an imputed political opinion following the Provincial Council elections, it does not accept that he went into hiding to avoid further persecution and only emerged to campaign for the UNP in the 1999 Presidential election.  The Tribunal’s disbelief that the applicant was in hiding until the election is strengthened by his obvious lack of knowledge as to when the Presidential election was actually held.  He incorrectly guessed that it had been held in October or November, when it took place on 21 December 1999.

The Tribunal does not accept that the applicant’s house was burned by supporters of the PA Party assisted by the security forces.  The applicant had said when applying for his protection visa that this incident had taken place in 1996 after the Local Council election.  At the hearing he said that it had happened in November 1998.  When questioned about this inconsistency, he said it was not easy to remember the year.  The Tribunal considers that it should not be difficult for the applicant to recall if his house had been burned one year before he left Sri Lanka or three years before his departure.  The applicant’s inability to recall even approximately when his house was burned causes the Tribunal to disbelieve this claim.’

8                     There is more of the same in the Tribunal’s reasons.  Specific mention should be made of the Tribunal’s rejection of various statements made by various persons in support of the appellant’s claim.

‘The Tribunal is not persuaded as to the truth of the applicant’s claims by the letter from his wife, which the Tribunal considers to have been written for the purpose of providing support for his refugee claims.  Nor, for the same reason, is the Tribunal persuaded by the letter which the applicant submitted from the his parish priest in Negombo who urges the applicant’s priest in Australia to assist him to obtain the legal documents he needs to pursue his refugee claim.  In respect of the two letters from UNP politicians, the letter from Dr Jayawardene details activities by the applicant in support of the UNP which bear little relation to what the applicant said he did for the Party.  The letter from the other MP refers to unspecified harassment of the applicant following the Presidential election in 1999.  The Tribunal notes the following advice from the Department of Foreign Affairs and Trade about widespread document fraud in Sri Lanka in respect of immigration matters, including endorsement at a high level of irregular applications…’

9                     Consequently the Tribunal reached the following conclusion:

‘Taking into account all of the above, the Tribunal finds that the applicant was not persecuted in the past for reason of his political opinion because he supported the UNP or for an imputed political opinion supportive of the LTTE.  The Tribunal finds that the applicant has fabricated his claims to have been persecuted in order to provide a basis for claiming refugee status.

As the Tribunal does not accept that the applicant is a person of interest to the Sri Lankan authorities because of his political opinion or suspected involvement with the LTTE, the Tribunal finds that he would not be arrested on arrival for these reasons if he were to return to Sri Lanka.  If he were to be in trouble because he left on a false passport, any punishment he might incur would be for reason of breaking a Sri Lankan law of general application, and would not be persecution for a Convention reason.’

10                  Finally, the Tribunal also noted that the UNP had regained government in Sri Lanka in 2001.  In relation to that the Tribunal said:

‘If the applicant were to return to Sri Lanka and resume his political activities in support of the UNP, the Tribunal is satisfied that he would be able to obtain the protection of the Sri Lankan authorities if he were to encounter problems from PA supporters.  The Tribunal does not accept the applicant’s claims that he faces a real chance of persecution because the President of Sri Lanka comes from the PA party and some powerful people associated with her are being protected.’

11                  The appellant issued proceedings in this Court alleging that the Tribunal decision was invalid and should be set aside.  It was accepted by both parties that in order to succeed in that application it was necessary for the appellant to show that the process, reasoning or decision of the Tribunal was affected by jurisdictional error.  The appellant argued that the decision of the Tribunal was based upon evidence that was not open before the Tribunal, that the Tribunal failed to take into account relevant matters, and that the Tribunal failed to consider the consequences if its analysis of the facts were wrong.  The proceedings were remitted to the Federal Magistrate’s Court.  That Court rejected these arguments. 

12                  The matter comes before this Court on appeal.  The same arguments are repeated.  Notwithstanding the length of the written submissions, and indeed of these reasons, none of those arguments, in my view, have any substance or merit.  The appellant’s arguments that the Tribunal’s conclusions were not open on the evidence, and alternatively that it failed to take account of relevant matters, are in substance an invitation for this Court to engage in merit review.  As was pointed out by Gummow and Hayne JJ in Minister for Immigration, Multicultural and Indigenous Affairs v SLGB (2004) 207 ALR 12 at 20 to 21, [37]-[38]:

‘… section 65 of the act provides that the minister is to grant a visa sought by valid application if satisfied of various matters.  These include that any criteria for the visa prescribed by the act are satisfied...the satisfaction of the Minister is a condition precedent to the discharge of the obligation to grant, or refuse to grant, a visa and is a jurisdictional fact or criterion upon which the exercise of that authority is conditioned … the satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical, and not based on findings or inferences of fact supported by logical grounds … in adequacy of the material before the decision-maker concerning the obtainment of that satisfaction is insufficient in itself to establish jurisdictional error.’  (Footnotes omitted)

13                  It may be that the reference by their Honours to irrational and illogical grounds (meaning, as I understand it, grounds based on Wednesbury unreasonableness) may not yet have the support of all members of the Court.  However, the general propositions stated by their Honours, that inadequacy of the material upon which a credibility finding is made is not itself a jurisdictional error, does seem to have the support of the other members of the court.  It is consistent with the approach in this Court in NADR v Minister for Immigration, Multiculturalism and Indigenous Affairs [2003] FCAFC 167, at [9], the Full Court of this Court said:

‘The second ground of appeal was that the primary judge erred in not finding an error of law in the credibility findings of the tribunal.  The finding of facts, including the making of finders of credibility, was uniquely within the jurisdiction of the tribunal and not within the jurisdiction of this court.  It would have been in contravention of Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 for the court to have engaged in merits review.  Furthermore, there is no error of law, let alone a jurisdictional error, in the tribunal making a wrong finding of fact.’

14                  In my view the arguments put by the appellant that there is a jurisdictional error in this case, by reason either of the Tribunal having made credibility findings without evidence to support them, or that it failed to take proper account of evidence contrary to those credibility findings, have no substance.  The appellant's claims were rejected because he was not believed and because those who sought to give evidence in his support were also not believed.  There was no jurisdictional error in that process. 

15                  Finally, mention also needs to be made of the argument by the appellant that the Tribunal failed to apply the ‘what if I’m wrong’ test.  This argument is put from time to time.  At one period it enjoyed some success but not now.  I dealt with this argument at some length in Applicant A233 of 2003 v Refugee Review Tribunal [2004] FCA 666 at [18]-[28].  As I there pointed at, the only current significance of this argument is that it points attention to the question of whether the Tribunal has addressed the real issue before it; that is, whether or not the Tribunal is satisfied that the applicant has a well founded fear of persecution for a Convention reason if he is returned to his country of residence.  In this case it is clear that the Tribunal properly addressed the question it was required to address.  Indeed, as the Tribunal concluded:

‘As the political situation now the UNP has been returned to power is more favourable to the applicant than it was in the past, the Tribunal finds that there is not a real chance that if he were to return to Sri Lanka now or in the reasonably foreseeable future that he would be persecuted for reason of his political opinion or an imputed political opinion or for any other Convention reason.  The Tribunal finds that the applicant’s fears are not well-founded.’

16                  In my view it is plain that the Tribunal specifically addressed the ultimate question that it was required to address.  Whether or not it was correct in the factual conclusion it reached is not a matter for me but a matter within the jurisdiction of the Tribunal.  In consequence, in my view, the learned Federal Magistrate was correct in dismissing the application.  The appeal from him must be dismissed.

Associate:

Dated:              1 December 2004