NAXT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 279 (8 March 2004)

Last Updated: 19 March 2004

FEDERAL COURT OF AUSTRALIA

NAXT v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 279

NAXT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N1981 of 2003

JACOBSON J
8 MARCH 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1981 of 2003

BETWEEN:	NAXT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

JUDGE:	JACOBSON J
DATE OF ORDER:	8 MARCH 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.
2. The applicant pay the respondent’s costs in the proceeding.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1981 of 2003

BETWEEN:	NAXT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

JUDGE:	JACOBSON J
DATE:	8 MARCH
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an application for review of a decision of the Refugee Review Tribunal (the "RRT") made on 29 September 2003 and handed down on 23 October 2003.

2 The applicant is a citizen of Sri Lanka who arrived in Australia on 17 May 2001. He lodged an application for a Protection Visa on 22 October 2001. The application was supported by a statement in which he set out his claims in some detail. In summary, the applicant said that he was a Tamil-speaking Muslim and he claimed to fear persecution from the Sri Lankan authorities on the ground that he was suspected of assisting the Liberation Tigers of Tamil Elan (the "LTTE").

3 He said in his statement that his father was a businessman in Sri Lanka and that he had assisted his father. He stated that because their mother language was Tamil, they preferred to do business among the Tamils. He said in the statement that he had been beaten and tortured by the Sri Lankan authorities. There was a second basis of his claim, namely, he claimed to fear persecution from the LTTE because he said that the LTTE thought that he had information about it which he had provided to the Sri Lankan authorities.

4 On 3 December 2001 a delegate of the Minister sent a letter to the applicant in which the delegate set out country information which it said indicated that members of the Sri Lankan Army and the Government did not hold the belief that Muslims of Tamil heritage were siding with the LTTE and that Muslims would not face human rights abuse at the hands of the army or the police. The applicant's solicitors responded to the letter in writing on 9 January 2002. The delegate refused to grant the Protection Visa on 17 January 2002. The applicant applied to the RRT for review of the delegate's decision on 14 February 2002. The RRT set out the applicant's claims in its reasons for decision, it referred to the fact that an oral hearing had been held at which the applicant gave evidence to the RRT.

5 It is unnecessary to record in detail the RRT’s summary of the claims and evidence but it does appear to have based that part of its decision on the detailed material appearing in the applicant's statement in support of his Protection Visa.

6 The RRT rejected the applicant's claims substantially on credibility grounds. It accepted that the applicant is a Sri Lankan citizen and that he is a Muslim but the RRT was satisfied that it was "improbable" that the applicant, as a Muslim, would be suspected of assisting the LTTE. It referred in some detail and, indeed, quoted the country information to which I referred earlier in this judgment when dealing with the letter of 3 December 2001.

7 The RRT said that it was satisfied that there was no significant support for the LTTE in the Sri Lankan Muslim community. It said that it was improbable that a Sri Lankan Muslim would support the LTTE or assist them in their activities.

8 The RRT said that it did not find the applicant to be a convincing witness. The RRT said it did not accept that the applicant had been arrested or required to report to the police. It did not accept that the applicant's brother was held in custody to force the applicant to return to Sri Lanka and it did not accept that he was at risk of arrest on return to Sri Lanka.

9 The RRT did not accept that the applicant had been threatened by the LTTE. It said that having heard the applicant's evidence it was not clear why the applicant would be of interest to the LTTE or, indeed, to the Sri Lankan authorities.

10 The RRT said that it was not satisfied that there was any real chance that the applicant would be persecuted because he is a Muslim and the RRT was not satisfied that there was real chance that the applicant would be persecuted if he returns to Sri Lanka.

11 The applicant filed a short written submission. He may have had assistance in preparing the submission but, as counsel for the Minister submitted, it appears from the submission that the applicant read and understood the RRT’s reasons. The applicant correctly recognises in the submission that the RRT did not accept him as a credible witness and he submits that the RRT’s findings are questionable because he says there are no meaningful reasons to support the conclusion. He added only very briefly to this in his oral submissions stating that he had sworn to the truth in his application for a protection visa. The substance of the submission was that the RRT should have accepted what he said.

12 However, it is well established that the RRT was not bound to accept what the applicant said and it was up to the Tribunal to decide whether or not to accept the applicant's claims. There are many examples of this; see Abebe v The Commonwealth of Australia [1999] HCA 14; 197 CLR 510 at [84] and [187].

13 It is also well established that question of whether an applicant should be believed on a claim is a finding of credibility for the Tribunal to make. In Re Minister for Immigration and Multicultural Affairs ex parte Durairajasingham [2000] HCA 1; (1999) 168 ALR 407; 74 ALJR 405 at [67] McHugh J said:

"However, this was essentially a finding as to whether the prosecutor should be believed in his claim - a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word "implausible". The disbelief arose from the tribunal's view that it was inherently unlikely that the events had occurred as alleged."

14 McHugh Js decision has been followed by the Full Court on a number of occasions. The decision was followed recently in NAOL v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 243.

15 Here the RRT did not use the word "implausible" but the language of its decision is framed in terms of "improbability". The reasons which were given for the finding were short but brevity is not an error. The RRT was entitled to make the credibility findings which it did and no error is disclosed in the RRT’s reasons.

16 This not a case in which there is a complaint that the RRT failed to deal with an integer of the applicant's claims. Both of the alternative ways in which the applicant put his claim to have a well founded fear of persecution were dealt with. All relevant questions arising under the Convention were posed and answered. I am satisfied that no jurisdictional error is disclosed in the RRT’s reasons.

17 It follows that the orders that I propose to make are that the application be dismissed with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated: 8 March 2004

	Applicant appeared in person
Counsel for the Respondent:	R Bromwich
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	8 March 2004
Date of Judgment:	8 March 2004