VDAE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 123 (5 June 2003)

Last Updated: 5 June 2003

FEDERAL COURT OF AUSTRALIA

VDAE v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCAFC 123

MIGRATION - possession of sensitive political information - imputed political opinion - whether well founded fear of persecution - requirement to take evidence into account

VDAE, VDAF AND VDAG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFAIRS

V 4 of 2003

FRENCH, von DOUSSA and MARSHALL JJ

5 JUNE 2003

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 4 OF 2003
ON APPEAL FROM A SINGLE JUDGE OF THE COURT

BETWEEN:	VDAE FIRST APPELLANT VDAF SECOND APPELLANT VDAG THIRD APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	FRENCH, von DOUSSA and MARSHALL JJ
DATE OF ORDER:	5 JUNE 2003
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellants pay the respondent's costs of the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 4 OF 2003
ON APPEAL FROM A SINGLE JUDGE OF THE COURT

BETWEEN:	VDAE FIRST APPELLANT VDAF SECOND APPELLANT VDAG THIRD APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	FRENCH, von DOUSSA and MARSHALL JJ
DATE:	5 JUNE 2003
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT

1 This is an appeal from the judgment of a judge of the Court ("the primary judge") in which his Honour dismissed an application by the appellants for judicial review of a decision of the Refugee Review Tribunal ("the RRT").

2 The appellants contend that the issue for determination in the appeal is whether the RRT fell into jurisdictional error by failing to deal with an allegedly essential element of the claims made by the appellants in their application for a protection visa. This contention was put to the primary judge but rejected. The primary judge considered that on a fair reading, the decision of the RRT included non-acceptance of evidence that the appellants alleged was not dealt with by the RRT.

Background

3 The appellants are respectively a de facto wife, and husband and the child of the wife from her marriage to a formerly powerful politician in Sri Lanka, referred to by the primary judge as "A".

4 The appellants entered Australia on 6 October 1997. On 22 October 1997 they lodged an application for a protection visa. On 3 December 1997 a delegate of the respondent refused that application. On 8 December 2000 the RRT affirmed the decision of the delegate. The appellants applied to the Federal Court for review of the RRT's decision. On 22 May 2001, by consent, Weinberg J remitted the matter to the RRT. A second RRT hearing occurred on 18 December 2001. On 26 March 2002, the RRT affirmed the decision of the delegate.

The claims and the RRT's treatment of them

5 The appellants claimed that they had a well founded fear of persecution on the ground of imputed political opinion if returned to Sri Lanka. The essence of their claim is that Mr A would seek to harm them because they possessed information about him that would be damaging to him. They claimed to know details of his involvement in the assassination of a number of political figures in Sri Lanka in about 1993. They also feared that opponents of Mr A may harm them in order to force them to divulge that information. They claimed to hold these fears notwithstanding that there had been extensive police investigations and a major government Commission of Inquiry concerning the matters about which the appellants claimed to have information during 1996 and 1997 that did not lead to any charges being laid against Mr A, or even named in the report of the Commission of Inquiry.

6 In the material advanced in support of their application for protection visas the appellants referred to incidents which they said occurred on:

* 26 July 1997

* 21 August 1997

* 10 September 1997, and

* 24 September 1997

7 The 26 July 1997 incident was described in the following way by the RRT:

"On 26 July 1997, while the applicant wife and husband were visiting an employee [Mr A] and a number of other people came and shot at them. The applicant wife and husband `ran through the paddy fields during this dark night and escaped death'."

8 The 21 August 1997 incident was described as follows:

"[Mr A] was in custody and released on bail on 20 August 1997. The applicant [wife] states that [Mr A] had told the applicant daughter after his release that he would kill the family if the applicant mother went to court and that he ([Mr A]) had a person who had already killed two people."

At paragraph 27 of her statutory declaration made on 21 October 1997, the first appellant said the conversation between her daughter and Mr A occurred on 21 August 1997, the day after Mr A was released on bail. She said Mr A's words were `your mother is trying to send me to the gallows and also she has made a statement to the police and if she comes to Court I will kill all of you'. The daughter was aged 9 years at the time.

9 The 10 September 1997 incident was described as follows:

"The applicant wife states that [on] 10 September 1997 she, the applicant husband and the applicant daughter were driving and their car broke down at Talangama. The applicant husband went to look for a mechanic leaving the applicant wife and daughter in the car. The applicant [wife] states that they must have been followed `because at this time a certain Joseph, underworld thug of [Mr A] tried to kidnap (the applicant) daughter' and threatened the applicant wife with a knife. Neighbours heard the applicant shout and they came and apprehended Joseph. The applicant immediately ran to the police station, complained and Joseph was taken into custody."

10 The RRT went on to describe what the first appellant alleged happened at the police station which amounted to an implied threat to their lives by the authorities.

11 The 24 September 1997 incident was described as follows:

"The applicant states that on 24 September 1997, the family was staying at a hotel in Kaduwela because they were frightened. The applicant wife claims that at around 2.00 am police who support the (then) present government came in plain clothes and tried to arrest them. The hotel owner called the police and the applicants were `handed over' to `the Nawagamuwa police' where the officers `inquired from all the police stations in the island whether (they) were wanted for any crime'. The applicant states that the `police from Grandpass (police headquarters, and renowned as solid supporters of the present government) informed them that (the applicant husband and wife) were wanted by them regarding some misappropriation of money' and that a complaint against them had been made `by a woman who was active in politics with the present government'. The applicant states that `the Grandpass police informed the Nawagamuwa police that they had to produce (the applicants) before the Alutkade Magistrate's Court on 26 September 1997'. A police officer assisted them to obtain legal advice and the applicants were released by the magistrate. The applicants learned the following day that they were wanted at police headquarters. [A man referred to by the primary judge as "B"] left Sri Lanka that day and the applicant states that the government was angry with them for not giving evidence against him and `they tried to kill (them) at any moment'."

In evidence before the RRT the first and second appellants said that the first appellant had been charged with misappropriation of funds on 24 September 1997. The appellants also provided the RRT with two newspaper articles apparently dated 25 and 27 September 1997 which recorded the arrest of the first appellant `in connection with a series of cash frauds' and her failure to appear in Court.

12 Later in its reasons for decision the RRT summarised the evidence of the appellants by saying:

"...that there were attempts to threaten and intimidate them which they believe were motivated by [Mr A's] wish to silence them or the government's wish that they reveal what they knew ..."

13 The last sentence quoted from above concluded with these additional words:

"...and the following five paragraphs set out my findings about these claims."

14 The "following five paragraphs" deal with the appellant's evidence about events in July and September 1997. The 26 July 1997 incident was dismissed as a concoction. The 10 September 1997 incident was described as "(no) more than an opportunistic criminal action". The 24 September 1997 incident was dismissed on the basis that the RRT did:

"...not accept that the applicant's association with her former husband or with other political people had anything to do with the charges which she states were laid against her nor that it will affect the way in which the laws are applied to her."

Many adverse findings of fact were made by the RRT on matters of detail related by the first and second appellants in support of their claims. The RRT found their evidence on these matters not to be credible.

15 The five paragraphs referred to do not, in terms, deal with the alleged incident of 21 August 1997. However, at the conclusion of these paragraphs the RRT said in respect of Mr A's involvement in the assassination of a political opponent:

"If people have been looking for the applicant wife since her departure, I am not satisfied that they are people who want to harm her or the applicant husband in connection with this matter. I have considered the articles and letters which the applicants have provided in support of their claims but they do not outweigh the concerns I have with the evidence before me."

16 The 1997 incidents appear to have been dealt with globally by the RRT later in its reasons when it said:

"Given the disagreement [in Sri Lanka following the publication of the report of the Commission of Inquiry] about who was responsible for what occurred [the murders in 1993] now more than eight years ago, I am unable to be satisfied that there is a real chance that the issue of [Mr A's] alleged involvement would be raised in any substantive way if the applicants were to return to Sri Lanka and if what they claim to know were to be revealed. I do not accept that [Mr A] has acted to silence the applicants in the past as has been claimed and I do not accept that there is a real chance that he would do so in future in relation to the information they claim to have."

17 The transcript of the hearing before the RRT on 18 December 2001 at p 56 reveals that the RRT declined to take evidence from the third appellant about the events of 21 August 1997. The RRT said that:

"I don't propose to take evidence from your daughter. I know what she has claimed in the application and that is that [Mr A] threatened to kill her and the family if they gave evidence to the commission or gave evidence or exposed this. I don't think I need to take her through that today. Whether that's a real intention on his part and whether or not there is a real chance that you would come to harm because of what you know is what I have to think about."

18 It appears from the transcript that the RRT was prepared to accept that the incident of 21 August 1997 occurred but that it had to consider whether there was a real chance of the threats being carried out in the context of what was known publicly as at 18 December 2001 about Mr A's involvement in criminal activities in Sri Lanka.

The primary judge's approach

19 The issue agitated in the appeal was raised before the primary judge, namely that the RRT had ignored or failed to take into account evidence about the incident on 21 August 1997.

20 At [11] of his reasons for judgment, the primary judge dealt with that ground of review in the following way:

"As to the last mentioned matter, the Tribunal noted in its recital of the evidence that A had been in custody and was released on bail on 20 August 1997. The first applicant said that A had told her daughter after his release that he would kill the family if the first applicant went to the court and that he (A) had a person who had already killed two people. This allegation is not otherwise directly referred to in the reasons, although the Tribunal did say after reviewing various allegations by the applicants:

"Given the disagreement about who was responsible for what occurred now more than eight years ago, I am unable to be satisfied that there is a real change that the issue of (A´s) alleged involvement would be raised in any substantive way if the applicants were to return to Sri Lanka and if what they claim to know were to be revealed. I do not accept that (A) has acted to silence the applicants in the past as has been claimed and I do not accept that there is a real chance that he would do so in future in relation to the information they claim to have.""

21 At [12] his Honour said, with reference to the above quoted passage from the RRT's reasons:

"A fair reading of this includes a non-acceptance of the evidence as to A's acting by making threats to the daughter."

Consideration

22 We are inclined to agree with the primary judge that a fair reading of the reasons of the RRT includes a finding of non-acceptance of the evidence as to Mr A's acting by making threats to the daughter. However, if this is so, the following questions would then arise:

* whether there was procedural unfairness on the part of the RRT in not taking evidence from the third appellant, who was 13 years of age at the time of the hearing, and

* whether there was procedural unfairness in rejecting that part of the appellant's claim regarding the allegation of the threat to the daughter, having regard to what the RRT said to the appellants about the evidence which the third appellant proposed to give.

However, we do not think it is necessary to explore these questions as we consider that the appeal must in any event fail.

23 This is so, as even if the RRT had accepted that Mr A said words as alleged to the third appellant (as the RRT appeared to do at the hearing), that acceptance would not have had any bearing on other findings made by the RRT which led to the upholding of the delegate's decision.

24 The RRT considered independent information available to it concerning events in Sri Lanka in 1993 and later years about which the first and second appellants gave evidence, and about the Commission of Inquiry and its findings. The RRT found that Mr A had not been implicated by the Commission of Inquiry. The RRT also found that information of the kind which the appellants alleged they had about Mr A, and about another political figure who they also claimed could present a threat to them, had been publicly aired in Sri Lanka, some of it in the Commission of Inquiry. That information had no impact on Mr A's capacity to participate in political activity. In relation to the other political figure, the RRT found that the appellants did not have anything new and credible to say about him; he had taken no action against the appellants in the past and it was implausible that he or his associates would now do so because of information the appellants claim to have. These findings led the RRT to be `unable to be satisfied that there is a real chance that the issue of [Mr A's] alleged involvement would be raised in any substantial way if the applicants were to return to Sri Lanka ...'.

25 The RRT found, in substance, that there was no objective basis for a well founded fear of persecution as information of the kind claimed to be possessed by the appellants was information that had been in the public domain for a long time and was not information of a kind that was likely to be of concern or interest to Mr A and his associates, or to the political opponents of Mr A.

26 This conclusion would not be affected by a positive acceptance of the alleged conversation on 26 August 1997. The information claimed to be possessed by the applicants would nonetheless still lack current importance.

Conclusion

27 For the foregoing reasons we consider that the appeal should be dismissed, with costs.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices French, von Doussa and Marshall.

Associate:

Dated: 5 June 2003

Counsel for the Appellant:	Mr J Gibson
Solicitor for the Appellant:	Erskine Roden & Associates
Counsel for the Respondent:	Dr C Beaton-Wells
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	14 May 2003
Date of Judgment:	5 June 2003