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MIGRATION - Review of decision of Refugee Review Tribunal - whether the Tribunal took into account alleged failures to translate from applicant's original written statement - whether applicant was provided with opportunity to explain discrepancies - no reviewable error found.

WAIQ v Minister for Immigration [2002] FMCA 319 (12 December 2002)

WAIQ v Minister for Immigration [2002] FMCA 319 (12 December 2002)
Last Updated: 13 December 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAIQ v MINISTER FOR IMMIGRATION
[2002] FMCA 319



MIGRATION - Review of decision of Refugee Review Tribunal - whether the Tribunal took into account alleged failures to translate from applicant's original written statement - whether applicant was provided with opportunity to explain discrepancies - no reviewable error found.



Migration Act 1958 (Cth), ss.424A, 474

Applicant:
WAIQ



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


WZ 200 of 2002



Delivered on:


12 December 2002



Delivered at:


Sydney



Hearing Date:


3 December 2002 in Melbourne via videolink to Perth



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Applicant in person



Counsel for the Respondent:


Ms L Price



Solicitors for the Respondent:


Blake Dawson Waldron



ORDERS

(1) Application dismissed.

(2) Applicant to pay respondent's costs in the sum of $4,000.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

PERTH


WZ 200 of 2002

WAIQ


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant is a Sri Lankan Tamil who arrived in Australia in November 2001 and applied for a protection (Class XA) visa on 27 November 2001. The Minister's delegate refused the application for protection on 18 June 2002. The applicant sought review from the Refugee Review Tribunal on 26 June 2002. A decision upon the review was made on 26 August 2002. It is in relation to the decision of the Refugee Review Tribunal affirming the decision not to grant a protection visa that the applicant seeks review from this court. The grounds of application completed by the applicant is in the following form:

"1. The RRT failed to take relevant consideration and made the decision unfairly/unreasonably.

2. The Tribunal did not believe my statement and it did not give me a chance to say what was in my statement. That is what happened to me in my home country.

3. The Tribunal did not consider a few translation mistakes between English and Tamil."

2. The applicant provided particulars of his concern about the translation and this formed an important part of his representations to me at the hearing. He was concerned that the statement which he wrote in Tamil and which was translated for the purposes of the hearing before the delegate, wrongly indicated the date of one of the two major incidents that occurred to him whilst in Sri Lanka. He complained that he wasn't given an opportunity to explain what the error was or to explain exactly what happened to him in Sri Lanka as he had originally done in the Tamil language.

3. At the hearing before me, the applicant advised that in 2001 the Katunayake Airport in Colombo had been attacked and that he was arrested immediately thereafter. He stated that that was not mentioned in the translation of his statement. That would appear to be correct. The statement appears at [CB 1-8] and there is only reference to one period of detention in 2000. However, it could not be said that the Tribunal was unaware of this. At [CB 100] the Tribunal notes:

"At the beginning of the first hearing before me, on 15 July 2002, the applicant indicated that his representative had made a mistake in the statement accompanying his original application. He said that the occasion on which he and his father had been arrested after fighting between the LTTE and the army close to his families home had been in the middle of 2000 not in the middle of 2001. The applicant confirmed that he claimed that he had been arrested by the army in around 2000 and detained for five days...

After initially confirming that he claimed that he had been detained on only three occasions - at the beginning of 2000, when he had been detained for five days, in the middle of 2000, when he had been arrested with his father and he had been detained for ten days, and in 2001, after the attack on Katunayake International Airport, when he had been detained for two months..."

4. I am satisfied that the Tribunal was seized of his complaint concerning the mistranslation and considered his application on the basis of an arrest after the airport incident.

5. Additionally, I am satisfied that the Tribunal met all of its obligations to provide the applicant with an opportunity to deal with matters of concern. On 23 July 2002 a letter written pursuant to s.424A of the Migration Act 1958 (Cth) ("Migration Act") was sent to the applicant setting out the concerns which the Tribunal had in the consistency of his statement. That notice was responded to by a firm of solicitors acting on behalf of the applicant. The representations made by the solicitors prompted the Tribunal to provide the applicant with a further hearing, which took place on 15 August 2002. At that hearing all the matters of concern to the Tribunal (which were principally in relation to the applicant's history of arrest, detention and torture) were debated.

6. But in addition to this the Tribunal also dealt with the other grounds upon which the applicant claimed he had a well-founded fear of persecution for convention reasons. These related both to the general position of Tamils in Sri Lanka and to the particular position of the applicant who claimed to have fallen foul both of the LTTE and of the Sri Lankan Government. The Tribunal relied on up to date country information concerning the peace process, which had commenced after the applicant left Sri Lanka. The Tribunal weighed this information against the submissions made by and on behalf of the applicant that the peace process was unlikely to succeed and that it was still dangerous for him to return to the country.

7. The Tribunal was influenced in its consideration of the applicant's concerns by its views as to his credibility. But the Tribunal's finding on credibility did not arise out of the difference between the first statement and subsequent evidence; it arose out of the general problems of credibility in the stories when tested against the timing issues and the applicant's unhelpful attempts to explain the discrepancies. In a telling paragraph at [CB 111] the Tribunal says:

"It was obvious from the applicant's demeanour that he was uncomfortable trying to deal with this problem of timing. ... The applicant's attempt to do this unravelled when he attempted to reconcile what he had said in the statement accompanying his original application with what he had said subsequently about his claimed arrest in 2000 and 2001. ...

As will be apparent I formed a very poor impression of the applicant's credibility on the basis of the evidence he gave before me. I have taken into account the applicant's comparative youth and the torture and trauma he claims to have experienced. However, even accepting that everything the applicant said at the first hearing should be disregarded because the applicant was suffering from a severe headache at the time, there remain significant discrepancies in the applicant's evidence [CB 112]."

8. It is the Tribunal's duty "par excellence" to assess the credibility of an applicant. I accept that in some cases the manner in which Tribunals do this could lead them into error (although, absent a lack of bona fides, such error would not be reviewable because of the privative clause s.474 of the Migration Act). But I can see no evidence of such error in these reasons. The applicant, who shows no appearance of having received a benefit from any legal advice which he has been given, is effectively asking this court to provide a merits review of the Tribunal's findings. That is not open to him. I must dismiss the application. I do so. I order that the applicant pay the respondent's costs assessed in accordance with Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules in the sum of $4,000.00.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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