FEDERAL COURT OF AUSTRALIA

WAJQ v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1580

MIGRATION – judicial review – Refugee Review Tribunal – protection visa – alleged jurisdictional error – failure to take into account relevant considerations – finding adverse to applicant’s credibility preceding rejection of documentary evidence – whether inconsistencies in applicant’s evidence – matter for Tribunal – application dismissed

Migration Act 1958 (Cth)

Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 cited

WAJQ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W51 OF 2004

FRENCH J

19 NOVEMBER 2004

PERTH

THE COURT ORDERS THAT:

1.         The application is dismissed.

2.         The applicant pay the respondent’s costs of the application.

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

REASONS FOR JUDGMENT

1                     The applicant is a citizen of Sri Lanka who arrived in Australia in September 2001. He applied for a protection visa on 20 September 2002.  On 13 November 2002 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused his application.  He then applied to the Refugee Review Tribunal (the Tribunal) for review of that decision on 14 November 2002.  The Tribunal affirmed the decision under review on 28 January 2003 and the applicant then sought judicial review.  He succeeded in that application.  On 1 December 2003, the Federal Magistrates Court ordered, by consent, that a writ of certiorari issue quashing the decision of the Tribunal made on 28 January 2003.  The matter was remitted to a tribunal differently constituted.  On 26 February 2004, that Tribunal gave its decision again affirming the decision not to grant a protection visa. On 3 March 2004, the applicant filed a notice seeking a judicial review of the second Tribunal's decision.

2                     The Tribunal in its reasons for decision comprehensively reviewed the evidence and claims advanced on behalf of the applicant.  Without going into the detail of all of those claims, the applicant in substance asserted that, for a number of years before coming to Australia, he had beenan active supporter and worker for the United National Party (UNP) and in particular that he supported a friend, Edward Gunasekara, who was a candidate for political office.  He claimed that by reason of his support for the UNP he attracted the attention of members of the opposition People's Alliance (PA) in the area in which he worked and that thugs associated with the PA had from time to time threatened him and other supporters of the UNP.  It is of significance to note that the UNP became the government of Sri Lanka in 2002.  Notwithstanding the accession of the UNP to power, criminal elements referred to as thugs associated with the PA threatened him and sought to pursue him even after he had departed from Sri Lanka and come to Australia.

3                     In its reasons for decision the Tribunal referred to the applicant's evidence and in particular referred to certain documents relied upon in support of his claims.  Reference to these documents appears at pages 340 and 341 of the Court Book.  One was described by the Tribunal as follows:

‘... a copy of a letter dated 4 October 2001 purporting to be from Mr Edward Gunasekara, Member of Parliament for the Gampaha District, stating that the Applicant has been a member of the UNP since 1991, that he was an energetic and brilliant organiser and that he had backed the party financially as well.’

The Tribunal recorded that the letter stated that when the UNP was ‘overpowered at the general election in 1994’ all party members went through a hard era and it was ‘an inescapable incident he had to face at last, so he had to flee to save his life’.  The second letter the Tribunal referred to was dated 23 September 2002 on the letterhead of the Ministry of Power and Energy which the Tribunal described as ‘purporting to be from someone in the private secretariat of the minister stating that the applicant was a member of the UNP.’

4                     The third letter was described by the Tribunal as a document purporting to be an undated letter from the applicant's wife, saying that in November armed thugs had come to the family home and had threatened her, asking about the applicant's whereabouts.  According to the letter, she said she understood that they had come to ‘revenge by the influence of politicians’ (sic), that they had warned her not to complain to the police and that they had sworn that the applicant would be killed soon.  She also said, according to the Tribunal's account of the letter, that the same thugs had come again and had taken ballot papers of the whole family before the election date.  She said because of those threats they had not voted and even after the election they had been in hiding.  The letter recorded her report that the thugs had attacked a local polling station.

5                     The fourth letter referred to by the Tribunal was again described by it as a ‘purported’ letter, on this occasion from the applicant's sister, dated 14 January 2002, saying that she had been facing a lot of problems and that people had come twice with police in the night and she was threatened by them not to say anything to police.  According to the letter, as recorded by the Tribunal, the applicant's sister said she had informed political leaders about this but they had asked her whether she knew the people who had threatened her.  She had said in letter that if she knew them or could recognise them she could have taken more action.

6                     The Tribunal also referred in its reasons to an extract from a record of a report made to police by the applicant's sister on 2 January 2002.  In that statement she referred to the applicant as a staunch UNP supporter and said that as a result of his devoted and zealous campaigns for a number of party candidates he had received death threats and had asked for permission to stay at her place.  The statement claimed that the threats did not cease even after the applicant had changed his residence, and it was on account of that that he disposed of his business and left the country. According to the statement, even after the applicant left the country ‘menacing political thuggery’ continued and gangs of villains came to his sister's home and asked her to hand him over to them. 

7                     The Tribunal noted that in a covering submission the applicant's representatives had referred to recent events in Sri Lanka, and in particular the fact that the President had taken over the Defence, Interior and Media Ministries in November 2003 and that the UNP had formed an alliance with another party; that is the Janatha Vimukthi Peramuna (JVP).  They said that analysts were predicting an early election.  They alleged that corruption was prevalent in Sri Lanka and suggested that the Sri Lankan authorities would provide the applicant with little or no protection for that reason. 

8                     The Tribunal set out in some detail evidence at the hearing, the oral submissions of the applicant and the applicant's response to matters put to him by the Tribunal. 

9                     In the part of its reasons headed, ‘Findings and Reasons for Decision’, the Tribunal said (at 22):

‘In the present case I do not accept that the Applicant was involved in politics in Sri Lanka as deeply as he claims to have been.  I note in this context that the Applicant does not claim only to have been a member of the UNP but to have been one of the major organisers in the party and a big threat to the opposing party.  In the statement accompanying his original application and at the hearing before me the Applicant claimed to have been involved in provincial council elections which had taken place in December 2000.  As I put to the Applicant, there was no such election.  The Applicant said that it had been the Pradeshiya Sabha election, for the local government bodies.  I noted that there had been no local government elections on 10 December 2000 either.  The Provincial Council elections had been held in 1999.  I noted that there had been a general election held on 10 October 2000 but the Applicant had not mentioned this election when referring to elections in which he had been involved in the course of the hearing.’

10                  The Tribunal accepted that the applicant had referred in passing to the October 2000 election in a statement of his claim prepared by the officer who interviewed him in November 2001, but had not otherwise mentioned that election.  He told the Tribunal that he had made a number of statements but had since forgotten certain things because he was so distressed.  The Tribunal observed:

‘I indicated to the Applicant that I did not doubt this but I did not accept that he would have made the errors that he had if he had been involved in politics as deeply as he claimed to have been.’

11                  The Tribunal then referred to his misspelling of the name of a Mr Reggie Ranathunga of whom he had spoken in the course of his evidence. The tribunal went on to say:

‘The Applicant then said that the spelling ‘Rajee’ must be his mistake.  I do not accept that this is the sort of mistake which someone deeply involved in politics in opposition to Mr Ranathunga would make.’

12                  There was then a reference to the applicant's evidence that Mr Ranathunga had been the member for Minuwangoda, which the applicant said was his electorate and that Mr Ranathunga’s son, Prasanna Ranathunga, had been a candidate at the provincial council elections in December 2000 for the Minuwangoda Provincial Council in Gampaha District.  The Tribunal said:

‘As I put to the Applicant, neither Minuwangoda nor Gampaha are Provincial Councils. ...  The Applicant then said that it had been the Western Provincial Council.’

13                  The Tribunal observed that the applicant had exhibited confusion about the electoral system in Sri Lanka.  He had persisted in asserting that Mr Ranathunga represented the Minuwangoda electorate, even after it was pointed out to him by the Tribunal that Sri Lanka did not have single member electorates.  The Tribunal interpolated that members are elected on the basis of proportional representation from multi-member districts and in that respect referred to information which it had downloaded from web sites setting out results of the elections for various districts and to which, evidently, the applicant was referred.  The Tribunal said:

‘The Applicant said that his friend Edward Gunasekara had represented the electorate of Diwulapitiya whereas, as I put to him, both Reggie Ranathunga and Edward Gunasekara stood as candidates for the Gampaha District at the October 2000 general election.’

It cited the relevant web sites.  The Tribunal noted that the applicant agreed, but said that as far as electors were concerned candidates also stood as candidates in electorates.  The Tribunal had put to the applicant that each party had a list of candidates for the whole of the district and noted that while the applicant agreed with this he said that each candidate would seek to maximise the votes they obtained in their own electorates.  The Tribunal said:

‘I noted that the Applicant had produced a letter purporting to be from his friend Edward Gunasekara which identified him as a Member for Gampaha District.  The Applicant agreed.  He said that he accepted that politicians represented the district, not individual electorates, but he repeated that in order to elected (sic) they would seek to maximise the votes from their own electorates.  I do not accept that the Applicant would not have demonstrated a better understanding of the electoral system than he did if he had been as deeply involved in politics in Sri Lanka as he claims.  For the reasons given above I do not accept that the Applicant was one of the major organisers in the UNP nor that he was regarded as a big threat by the PA.’

14                  The Tribunal went on to set out a number of claims which it did not accept.  It did not accept that the applicant was heavily involved in the general election in August 1994 or in the presidential election in November 1994.  It did not accept that, as claimed, he had to go into hiding for three months after the latter election, nor did it accept that the applicant was heavily involved in local government elections in March 1997.  Nor did it accept that the applicant was heavily involved in the December 1999 presidential election or that he was detained in a police cell or lock up for a day during that election campaign as he claimed.  It did not accept, for the same reasons as in respect of the earlier findings, that the applicant was involved in provincial council elections in December 2000, noting that no such elections took place.  It did not accept that someone as deeply involved in politics as the applicant claims to have been would mix up a general election with provincial council elections.

15                  The Tribunal did not accept that the applicant was attacked along with other UNP supporters when they were decorating a town, nor that on the supposed election day he and others were chased away from polling booths and threatened by armed thugs acting on behalf of Reggie Ranathunga.  The Tribunal did not accept that the applicant and his friends subsequently made a complaint to the police about the incident or that the police refused to take any action on their complaint.

16                  At page 25 of its reasons, in a key passage, the Tribunal said:

‘I do not accept the Applicant's claim that there were plans after the rally on 19 July 2001 to kill major organisers and leading followers of the opposition parties.  As I put to the Applicant the UNP went on to win the general election in December 2001.  I do not accept that the Applicant had to go into hiding at his sister's place because underworld thugs were looking for him in an attempt to kill him.  Having regard to my assessment of the depth of the Applicant's involvement in politics, I do not accept that, as stated in the letter dated 4 October 2001 purporting to be from Edward Gunasekara, the Applicant was an energetic and brilliant organiser for the UNP nor that the Applicant had to flee Sri Lanka to save his life.  I do not accept that as stated in the letter from the Applicant's wife in November 2001 armed thugs came to his home in Sri Lanka asking where he was and seeking to exact political revenge, nor that the thugs took the family's ballot papers or electoral voting cards.  I do not accept that, as stated in the letter from the Applicant's sister, unknown people have come to her home seeking the Applicant, nor that on two days the police surrounded her home and refused to accept it when she said the Applicant was not there, nor that thereafter she was asked to report to the police station on a daily basis.  I note that the Applicant himself has never suggested that he was being sought by the police for any reason in Sri Lanka.  I do not accept that, as set out in the purported report made to police by the Applicant's sister on 2 January 2002, the Applicant received death threats from various persons on numerous occasions, that ‘menacing political thuggery’ continued while he was staying with his sister, nor that gangs of villains have been coming to his sister's home asking her to hand him over to them.’

17                  The Tribunal,  later in its reasons,  repeated its rejection of the proposition that the applicant was a major organiser with the UNP or regarded as a big threat by the PA.  It accepted that he had become a member of the UNP because he perceived that would assist him in establishing his own business.  It accepted that if he returned to Sri Lanka now or in the reasonably foreseeable future, he would resume his political involvement at that level but did not accept that if he did so, there was a real chance that he would be attacked or threatened by armed thugs acting on behalf of PA politicians or otherwise persecuted for reasons of his political opinion.  The Tribunal acknowledged that political violence is a perennial problem in Sri Lanka but did not accept that either the PA or the UNP condones or encourages political thugs.  It referred to information from the Australian Department of Foreign Affairs and Trade in that respect.

18                  The application for review was amended at the hearing by the substitution of two grounds for review and I will deal with each of them. 

19                  The first ground relates to the way in which the Tribunal dealt with the four documents to which it referred, being the letter written by Mr Gunasekara, the letter written by the applicant's wife, the letter written by his sister and the police statement provided to the police by the sister.  It also deals with the way in which the Tribunal dealt with the letter written by the private secretary of the Minister of Power and Energy of 23 September 2002.  The ground is in the following terms:

‘The Refugee Review Tribunal in its decision made on 26 February 2004 (No 3/47978) made a jurisdictional error in that it:

(a)       did not make any findings as to whether the four documents submitted by the applicant in support of his claims were, in truth, the documents they purported to be ... and so failed to take into account relevant considerations;

(b)       did not take the contents of the four documents into account and so failed to take into account relevant considerations.’

The ground is particularised by reference to the four documents I have just mentioned and goes on:

‘(c)      did not take into account a relevant consideration, being a letter written by the private secretary to the Minister of Power and Energy dated 23 September 2002.’

20                  So far as the four documents mentioned in paragraphs (a) and (b) of ground 1 are concerned, the substance of the complaint made on behalf of the applicant is that the Tribunal made findings adverse to his credit and in particular as to his involvement in UNP politics in Sri Lanka and based those findings on material other than that contained in the four letters and, in essence, relied upon those findings to reject the statements made in the letters.  This is said to have reflected an erroneous approach in that the Tribunal did not take the letters into account as possible corroborating evidence to be put into the mix in determining whether or not the claims as made by the applicant were true.  In other words it is said to have inverted the proper process of reasoning.

21                  In my opinion there is no jurisdictional error disclosed in this approach, nor anything that could be called an error of logic.  The Tribunal, it seems to me, is entitled on the basis of evidence that is before it to make a finding as to the applicant’s claims and having regard to that finding, to reject assertions or to indicate by way of rejecting the assertions contained in the letters that it gives no weight to those assertions.  This would seem to be compatible with the approach taken by Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 where his Honour said (at [12]):

‘It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness.’

In the joint judgment of McHugh and Gummow JJ it was said, referring to the decision of the Tribunal under review in that case, (at [49]):

‘If the critical passage in the reasons of the tribunal be read as indicated above, the tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration.  The appellant's argument in this court then has to be that it was irrational for the tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question.  That may be a preferable method of going about the task presented by section 430 of the Act.  But it is not irrational to focus first upon the case as it was put by the appellant.’

22                  In my opinion the approach taken by the Tribunal in this case therefore does not, in respect of the four documents which I have mentioned, indicate the claimed failure to taken into account relevant considerations or in any other way any jurisdictional error.  There was some complaint made by counsel that the Tribunal had referred to each of the documents as purporting to come from its apparent author, without going on to make a determination as to whether it did or did not.  The reasons of the Tribunal, as an administrative body, are not to be read with the nicety that one might apply to reasons for decision in a judicial proceeding. I take it that the Tribunal has proceeded upon the basis, even assuming the letters to be genuine  in terms of their authorship, that the statements which it rejected were rejected on the basis of its assessment of the applicant's activities by reference to the other evidence which it had heard.

23                  The submission is also made, in respect of ground 1, that the Tribunal failed to have regard to the letter written by the private secretary to the Minister for Power and Energy the existence of which it mentioned in passing.  The text of that letter was as follows:

‘This is to confirm that the applicant is a loyal supporter of our party.  He is one worked with dedication for the rejuvenation and victory of the United National Party.  A Western Provincial Council member. Hon Yudini Wijeratne has also attested to his loyalty.’ (sic)

24                  It is not essential that the Tribunal refer to every item of evidence before it, in particular where its findings involve, as in this case, a rejection of the level of involvement claimed by the applicant in relation to the UNP.  I do not consider that there was, in relation to the absence of any detailed consideration of that letter, a failure to take into account a relevant consideration.

25                  The second ground of the application is in the following terms:

‘The Tribunal found that the applicant was not involved in politics in Sri Lanka deeply, was not a major organiser of the United National Party and was not regarded as being a big threat by the Peoples' Alliance Party...’.

This is referred to in the grounds as the final finding:

‘The final finding was materially based on the Tribunal's finding that the applicant exhibited confusion about the electoral system in Sri Lanka because his evidence as to the relationship between politicians and electorates/districts was inconsistent with results which the Tribunal read from the internet.

In making the final finding the Tribunal made a jurisdictional error in that it took into account a consideration (being the said inconsistency) which was irrelevant (because there was no such inconsistency) and the Tribunal failed to take into account a relevant consideration (being that the applicant's evidence on this aspect was consistent with the results from the internet).’

26                  Counsel for the applicant referred to material in the court book being information from the Internet which had been referred to by the Tribunal in coming to its conclusions about the applicant's knowledge of the electoral process in Sri Lanka.  These were published results of the general election in 2000 which showed, inter alia, that the election was for representatives of districts and in particular referred to both the results of Mr Edward Gunasekara as a representative of the UNP in the electoral district number 2, Gampaha.  Similarly, in relation to the PA there was reference under that district heading to Mr Ranathunga as a representative of that party.  Counsel was unable to point to any error that the Tribunal had made in a factual sense in its characterisation of the electoral arrangement in Sri Lanka.  It set out in its reasons the contentions made by the applicant that there was a kind of de facto connection between particular candidates and particular parts of the districts in which they stood which was compatible with the nation that they were in a sense standing for individual areas within the particular district and seeking to maximise their votes within those areas.  The question of whether that was all properly characterised as inconsistency and a failure to display the kind of detailed knowledge of the electoral system which would be expected from a person heavily engaged in the electoral process was a matter for the Tribunal to assess.  That's a question of fact and no doubt there could be debate about whether its assessment was logically justified or not.  In my opinion it was at least open to the Tribunal.  Whether it was a strong inference or not, is not a matter into which this Court can inquire.  I am satisfied that ground 2 does not disclose a jurisdictional error on the basis there set out.

27                  For the preceding reasons neither of the grounds succeed and the application will be dismissed with costs.  In making that order may I express my appreciation to Mr Howard for carefully and fairly putting everything that could reasonably be said on behalf of the applicant in this matter. 

Associate:

Dated:              3 December 2004