MZXMH v Minister for Immigration & Anor
[2007] FMCA 365
•8 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXMH v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 365 |
| MIGRATION – Refugee Review Tribunal – whether corroborative evidence rejected out of hand – whether the Tribunal failed to deal with a claim – whether the Tribunal adequately alerted the applicant to the issues on which the decision turned – application dismissed. |
| Migration Act 1958, ss.422B, 424A, 425 |
| NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568 |
| Applicant: | MZXMH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG1177 of 2006 |
| Judgment of: | Riley FM |
| Hearing date: | 19 March 2007 |
| Date of last submission: | 19 March 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 8 May 2007 |
REPRESENTATION
| Counsel for the Applicant: | L De Ferrari |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Sharon Burchell |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application filed on 21 September 2006, as amended, be dismissed.
The applicant pay the first respondent’s costs, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG1177 of 2006
| MZXMH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application filed on 21 September 2006 seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 11 August 2006. The applicant is a 31 year old female citizen of Turkey and the Turkish Republic of Northern Cyprus. She arrived in Australia on 25 May 2005 as the holder of a visitor visa. On 1 July 2005, the applicant applied for a protection visa. On 11 October 2005, a delegate of the first respondent refused the protection visa application.
On 4 November 2005, the applicant applied to the Tribunal for review of the decision of the delegate. On 11 August 2006, the Tribunal handed down its decision affirming the decision of the delegate refusing to grant the applicant a protection visa. On 21 September 2006, an application for judicial review of the Tribunal’s decision and a supporting affidavit was filed in this court. On 6 February 2007, the applicant filed an amended application and contentions of fact and law. On 28 February 2007, the first respondent filed contentions of fact and law.
Initial claims
The applicant set out the grounds of her claim in a statutory declaration lodged in support of her visa application. The applicant claimed that she was of Kurdish ethnicity and had been working as a journalist in Northern Cyprus before arriving in Australia. She claimed that:
[45] In March 2005 at the Nevroz celebrations, some Kurdish demonstrators trampled on the Turkish flag. After that, the authorities started cracking down on Kurdish people. People were forced to hang Turkish flags out of their windows. I wrote an article about this incident. I said that this action was an attempt to instigate tension between Kurds and Turks. I said that people shouldn’t be fooled by this provocation.
The applicant claimed that the manager at the newspaper where she worked refused to publish the article. She said that when she returned home that night, her house was raided by three men who took her away and physically and sexually assaulted her. She said that they showed her the article she had written. The applicant said that she was released “the same day”.
In her protection visa application, the applicant said that she had left Cyprus ‘[t]o avoid persecution on the basis of my Kurdish ethnicity and political opinion and work as a journalist.’ She said that she feared that if she returned to Cyprus she would be held against her will and threatened and tortured by the security forces and the police.
Evidence before the Tribunal
The applicant’s oral evidence about the events surrounding the article she claimed to have written about the Nevroz celebration in March 2005 was summarised by the Tribunal as follows (page 20):
She said that she took this article to two leftwing newspapers – Yilandz and Ortan – and they did not even look at the article and did not want to accept it. She then took it to her editor and asked him would he publish it. She insisted that he publish it. … Her editor told her that he was very busy and he would look at it later. That night she was raided by the police, although she was not sure if it was the police because they were not in uniform and took her to the same place as when she was arrested as a student in 1998. … She could not recall how long she was held there, but it was not the whole day. ... She assumed that he [her editor] had given the article to the police.
The applicant’s evidence about the events concerning the father of a friend were summarised by the Tribunal as follows (pages 19-21):
The applicant confirmed that her friend … [“X’s”] father had been apprehended and charged with being a PKK supporter. She said that there had not been any particular incident that he had been involved in or connected with or assisted with which had led to his arrest. They raided his home. She was asked whether any other families had been arrested and deported with [X’s] father, and she responded that there were, but she was not quite sure of their identities. … She was asked whether [X’s] father was able to return to Cyprus, and she responded that after a couple of years [X’s] mother and 2 siblings were able to return to Cyprus, but only for a visit. Her father had not been able to return. …
It was put to her that a newspaper article available to the Tribunal indicated that the deportation order against [X’s] father and the others who had been deported with him had been cancelled by the CTP government and that the other family had returned to Cyprus. It was put to her that [X’s] father and the others had been arrested because they were regarded as assisting [… in a particular] bombing. …
The applicant maintained that [X’s] father had not been able to return to Cyprus. …
Submissions made after the Tribunal hearing
On 21 April 2006, the applicant’s legal adviser wrote to the Tribunal enclosing the statement dated 23 February 2005 made by X and a certified translation. A combined statement from the applicant’s sister and father, accompanied by their identification cards, was also enclosed but without a translation. By letter dated 2 May 2006, a translation of the combined statement was provided to the Tribunal. In the statement, the applicant’s sister said:
In 2005, the police came around in the evening and picked her up from home. Without giving a valid explanation, they took [MZXMH] away. We feared for her safety by there was nothing we could do. After couple of days, [MZXMH] called us from [place A] and we went and picked her up.
In the letter dated 2 May 2006 to the Tribunal, the applicant’s legal adviser wrote:
It is noted that [MZXMH] states in her statutory declaration that she was released the same day after being detained in 2005. In the attached witness statement, it is recollected that [MZXMH] was picked up after a ‘couple of days.’ [MZXMH] confirms her instructions that she was released the same day she was detained in 2005. [MZXMH] instructs that she asked her family members to provide a statement and that she said to them ‘write what you can remember.’ [MZXMH’s] family is coping with the abuse of their sister and daughter within the broader ongoing context of having to negotiate their identity as Kurds in North Cyprus. It is submitted that in these circumstances, details such as that outlined above may understandably be incorrectly recollected by a witness.
Section 424A notice
By letter dated 7 June 2006, the Tribunal invited the applicant to comment on certain information pursuant to s.424A of the Migration Act 1958 (“the Act”). Relevantly, the Tribunal said in the letter:
You provided a statement to the Tribunal from your sister which stated that in March 2005 you were detained for 3 days whereas you have claimed that you were detained for 1 day.
This information is relevant because it may indicate that you are not telling the truth. This Tribunal acknowledges that you have already provided an explanation but provides you with a further opportunity to comment
…
The letter dated 23 May 2005 (sic) by [X] provided to the Tribunal was not accompanied by any identification documents. Her account of what occurred, particularly her statement that her family members were deported without any reason, is at odds with the newspaper report that they were accused of involvement in a bombing and assisting the PKK.
This information is relevant because it may lead the Tribunal to conclude that [X] was not the author of the letter.
On 21 June 2006, the Tribunal received a response from the applicant which included a new certified translation of the statement from the applicant’s sister. The applicant submitted that the relevant sentence, ‘After couple of days [MZXMH] called us from [place A] and we went and picked her up’, had not been correctly translated. It was submitted that the strict translation of the sentence, as confirmed by the new certified translation, was, ‘After one or two days, [MZXMH] called us from [place A] and we went and picked her up’.
The Tribunal’s reasons for decision
In its reasons for decision, the Tribunal said it had:
… some significant concerns with many aspects of the applicant’s claims. The applicant in many of her claims, particularly when confronted with conflicting material, attempted to give an impression of what occurred to her or what was occurring around her, which was on closer examination, quite misleading.
The Tribunal addressed the evidence given by the applicant with respect to the incidents surrounding the Nevroz celebrations, saying that:
In relation to the article the applicant claims she wrote in March 2005, her initial claim was that in March 2005 at the Nevorz celebrations some Kurdish demonstrators trampled on the Turkish flag. After that the authorities started cracking down on Kurdish people and people were forced to hang Turkish flags out their window. She wrote an article about this incident stating that it was attempt to instigate tension between Kurds and Turks and that people shouldn’t be fooled by this provocation. The applicant’s adviser provided a copy of Turkey in Europe, Volume 1, Issue 2, May 2005 which indicated that there had been a desecration of the Turkish flag by a few teenagers after the Nevroz Kurdish New Year celebrations in Diyarbakir. The adviser’s submissions to the Tribunal dated 21 April 2006, indicated that it was their mistake that this article was included instead of an article that reported specifically on an incident in Mersin. They stated that the incident at Mersin was commented on in the report they had provided “Dissenting voices, Freedom Association in Turkey” (without providing any reference at (sic) to where it was mentioned in the 57 page report). At page 50 of that report there is a reference to allegations that a group of juveniles had attempted to burn a Turkish flag at the Nevroz celebrations in Mersin on 20 March 2005. The Tribunal notes that the applicant’s initial claim was that the Turkish flag has been trampled on, whereas later she is claiming the Turkish flag as being burnt. On one hand this may be a minor discrepancy, but given that she claims to have written an article about this incident and claims that it was this article that led to her arrest, detention and ill-treatment, the Tribunal finds it significant that there has been a shift in her claim. In her original claim she explained how the manager refused to print it and that night when she got home after work her house was raided and she was taken away and ill treated by 3 men. She was released the next day. The statement from her sister in relation to this incident indicates that she was released several days later. The Tribunal notes the applicant’s adviser’s explanation that this discrepancy may be caused by the fact that the family was coping with the abuse of the applicant and have incorrectly recollected this incident. The later explanation for this was that there was a translating error and should have been after one or two days. The Tribunal finds that there is a significant difference between being detained for 1 day and being detained for longer. (emphasis added)
The applicant claimed that the owner of the newspaper may have given the article to the police which was how she was found out. She explained that the editor in chief was very sympathetic to her views and he would not have done this. The Tribunal finds that there would be no reasons for the editor in chief to give this article to the owner of the newspaper given that it would not be published as it was against the editorial policy of the paper and the editor in chief had already, on the applicant’s evidence, told her that it would not be published. In addition the Tribunal finds that if they were concerned about this article and her views, rather than giving it to the police the paper would have merely dismissed her. The Tribunal does not accept that the applicant wrote an article about this incident which she submitted to her editor in chief, who gave it to the owner of the newspaper, who gave it to the authorities in Cyprus. Therefore, the Tribunal does not accept that the applicant was arrested and detained and ill treated as a result of the incident. The Tribunal’s view is reinforced by the fact that the applicant had made arrangements to travel to Australia prior to this incident occurring. She had originally given the impression that it was this incident that caused her to leave Cyprus. However, when it was put to her that she had already made arrangements to leave prior to this incident, her explanation was that the family had anticipated that there would be trouble at Nevroz and arranged for her to leave. Given the applicant’s evidence she had attended many Nevroz celebrations, the Tribunal does not accept that the family anticipated that at this Nevroz celebration there would be trouble to the extent that would warrant her having to leave Cyprus. The Tribunal does not accept that the applicant was detained and assaulted in March 2005 and finds that the applicant has fabricated this aspect of her claims.
With respect to the evidence provided by X, the Tribunal said:
The Tribunal attempted to take evidence from [X]. The Tribunal made it clear to the applicant’s advisers and the applicant that it was concerned about identifying [X] so as to be sure that the person it was taking evidence from was in fact [X]. The Tribunal did attempt to contact her by mobile phone but was unable to get through. The Tribunal arranged for [X] to attend at the Embassy in Nicosia, but the applicant claimed it was too dangerous for her to do so. As explained to the applicant, if [X] had have attended at the Embassy, the Embassy staff would not have been aware of whose case [X] was there to give evidence in relation to; the applicant’s name would not have been mentioned. Embassy staff would not be privy to [X’s] evidence. Further, the applicant claimed to mistrust … [“Y”], who worked at the Embassy. This is despite the fact that earlier the applicant had stated [Y] was a friend and associate of her editor-in-chief. The editor-in-chief had supported her and helped her come to Australia. The Tribunal does not accept that [X] would be at any risk attending at the Embassy or that it would put her family at risk.
The applicant eventually provided a statement which purported to be from [X]. The Tribunal notes that despite the concerns raised with the applicant and the adviser, no identification documents were initially presented with that statement, the other statement provided from the applicant’s sister did have this identification.
The Tribunal finds it odd that the contents of that statement indicates that [X] claims that her father was deported without any reason and that he had never been charged with any offence. This seemed at odds with the newspaper article that in fact he was accused of involvement in a bombing … and of assisting the PKK. Even if these charges were not true, the Tribunal would have expected them to have been mentioned as being trumped up charges in her statement. Further, she does not mention her father’s associates who were also deported from Turkey at the same time, nor does she mention the fact that their deportation order has currently been lifted. In relation to the identification the applicant’s advisers subsequently sent a photocopy of [X] identification and indicated that they would provide a further statement from [X]. The reasons for the delay in obtaining a statement from [X] was that the applicant could not contact her as she had gone to Turkey. The Tribunal finds it odd that the applicant could not contact [X] in Turkey. The applicant provided her mobile telephone number to the Tribunal which the applicant claimed [X] would be contacted on. The applicant did not want [X] to attend at the Embassy and the Tribunal was unable to test her evidence. The contents of her statement does not seem to accord with the events that occurred in Cyprus. For these reasons the Tribunal places little weight on the statement of [X]. Further [X] appears to travel to and from the TRNC and there is no evidence that she has had difficulties with the authorities. For these reasons the Tribunal finds that there is no real chance that the applicant would be persecuted in the reasonably foreseeable future for reasons of her association with [X] or her family.
In conclusion, the Tribunal found that the applicant had never been ill treated or persecuted in Cyprus. The Tribunal did not accept that if the applicant returned to Cyprus she would publish articles or be involved in activities that would lead to the authorities taking action against her. The Tribunal found that there was no real chance that she would be persecuted in the foreseeable future for reasons of her political opinion or for being Kurdish. The Tribunal found that the applicant did not have a well founded fear of persecution for a Convention reason and that she was not a refugee.
Grounds of review
In the amended application filed with the court on 6 February 2007, the applicant set out the following grounds of review:
1.Failure to deal with corroborative evidence (being the letter from the applicant’s sister and father), with no sound basis for rejecting that evidence.
2.Failure to deal with a claim of the applicant (being the claim of abduction, and physical and sexual assault in March 2005).
3.Failure to comply with the requirements of s 424A of the Migration Act 1958 (in relation to the reasons for discounting the evidence of [X], and as a result, rejecting the applicant’s claims that she would face persecution by reason of her association with [X] and/or family of [X].
At the hearing before this court, the applicant was given leave to further amend her grounds of review to delete ground 3 and insert a new ground 3 as follows:
Breach of natural justice by the Tribunal relying on matters not put after identification in the final section 424A letter of what was in issue in respect of [X’s] letter.
Ground 1: corroborative evidence
The applicant argued that the corroborative evidence provided in the form of a letter written by the applicant’s sister was erroneously rejected by the Tribunal out of hand. A translation of the relevant passage from the sister’s letter is as follows:
I am [MZXMH’s] sister. I am sending this fax to you from Cyprus.
…
In 2005, the police came around in the evening and picked her up from home. Without giving a valid explanation, they took [MZXMH] away. We feared for her safety but there was nothing we could do. After one or two days, [MZXMH] called us from [place A] and we went and picked her up. This last arrest was worse because she received a death threat. [MZXMH] was never able to get over what she last experienced in custody in 2005. On top of this, she was then sacked from her job. … (emphasis added)
The applicant noted that the Tribunal dealt with this evidence as set out in bold in paragraph 13 above. The applicant referred to the decision of the Full Federal Court in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568 where Lee and Moore JJ in a majority decision said the following:
[18] The role of the tribunal in conducting a review under the Act is to assess whether the material presented indicates that there is a real possibility that if the applicant were returned to the country of nationality events involving the applicant may occur which would constitute persecution of the applicant. …
[19] In carrying out that assessment, involving as it does a determination of great importance to an applicant, the Tribunal must act "judicially" and according to law. In so acting the Tribunal does not exercise judicial power, but by reason of the importance of its task, the Tribunal must observe the "practical requirements of fairness" appropriate for the exercise of judicial power. …
[20] While the expression "acting judicially" is not now often used when referring to administrative decision making, it usefully comprehends concepts relevant to this appeal. (See: Australian Broadcasting Tribunal v Bond (1990)170 CLR 321 at 365 … per Deane J).
[21] Failure of the Tribunal to act "judicially" will necessarily stamp the review procedure as one which did not accord an applicant practical fairness or justice. To act "judicially" and according to law the Tribunal must carry out its decision-making function rationally and reasonably and not arbitrarily. (See: Bond per Deane J at 366-367). That is to say, the Tribunal cannot determine the matter by a "tossing a coin" or by making a "snap decision" or by acting on instinct, a "hunch" or a "gut-feeling".
[22] The requirement that the review procedure be carried out according to law, is an irreducible duty arising out of s75(v) of the Constitution. (See: Abebe v Commonwealth (1999) 197 CLR 510 per Gummow, Hayne JJ at [170]). Failure to observe that requirement will mean that the purported decision of the Tribunal has no "jurisdictional" foundation: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 … at [5]-[9] per Gleeson CJ; at [34], [37] per McHugh and Gummow JJ; at [116], [127]-[128] per Kirby J). The tribunal only obtains power to make a determination under the Act where the determination is based on findings or inferences of fact that are grounded upon probative material and logical grounds: see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 … at [145] per Gummow J …. … A determination based on illogical or irrational findings or inferences of fact will be shown to be a decision not supported by reason and to have no better foundation than an arbitrary selection of a result. It is because it is based upon such findings that the determination is an unreasoned decision. Such findings or inferences of fact become part of, and are not distinguishable from, the decision subject to judicial review: see S20/2002 at [54] per McHugh and Gummow JJ; Bond at 338, 359-360 per Mason CJ. A review culminating in such a decision would be a process lacking practical fairness or justice and would not be a process conducted according to law.
…
[26] The Tribunal determined the matter adversely to the appellant by disregarding the documents it had been directed to consider by the order made by consent in this Court, stating that the documents "do not overcome the problems I have with the applicant’s evidence".
[27] Such a circumstance may arise where an applicant’s claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material: see S20/2002 at [49] per McHugh and Gummow JJ). Obviously to come within that exception there will need to be cogent material to support a conclusion that the appellant has lied. Alternatively, if the purportedly corroborative material itself is found, on probative grounds, to be worthless it will be excluded from consideration by the Tribunal in assessing the credibility of an applicant’s claims. However, it will not be open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant’s claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance the Tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error: see Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82]-[85] per McHugh, Gummow and Hayne JJ. (emphasis added)
The applicant argued that the Tribunal in this case did not make comprehensive findings of dishonesty or untruthfulness such as are likely to negate allegedly corroborative material and nor was the purportedly corroborative material found on probative grounds to be worthless. Accordingly, the applicant argued that the Tribunal was in error in rejecting out of hand the corroborative evidence afforded by the letter from the applicant’s sister. The applicant said that the Tribunal had in reality relied solely on the difference between the applicant’s claim to have been detained for no more than one day and the sister’s claim that the applicant had been detained for longer. The applicant argued that this was a wholly inadequate basis for rejecting the corroborative material.
The first respondent argued that the Tribunal had in fact rejected the sister’s reportedly corroborative statement on the basis that it contained evidence as to the duration of the applicant’s detention that was contrary to the applicant’s own evidence. The first respondent argued that it was open to the Tribunal to find that there was a significant difference between the duration of the detention claimed by the applicant and that claimed by her sister. The first respondent argued that the applicant in this ground was seeking impermissibly to displace the Tribunal’s findings of fact. Moreover, the first respondent argued that the decision in WAIJ was dependent on the requirement to afford natural justice which had been overtaken by the introduction of s.422B of the Act.
Consideration of ground 1
In my view, it is not correct to say that the Tribunal rejected out of hand the corroborative evidence. The Tribunal began its findings and reasons with the statement that it had “some significant concerns with many aspects of the applicant’s claims.” The applicant’s claim to have been detained and assaulted in March 2005 was intertwined with her claim to have written an article about the mistreatment of the Turkish flag at the Nevroz celebration, in that the alleged perpetrators of detention and assault were said to have shown the applicant the article and said, “Who gave you these ideas? Are you intending to divide the country?”
The Tribunal rejected many of the applicant’s claims that were connected with the applicant’s claim to have written the alleged article, including the claim that she was dismissed in March 2005 from her employment following her attempt to have her employer publish the article. The rejection of that claim was based on a letter dated 12 April 2005 from her employer that the applicant had provided with her visitor visa application and on the basis of a telephone call to her employer on 19 April 2005. In both the letter and the telephone call, the employer confirmed that the applicant was in current employment at the newspaper.
The Tribunal also rejected the applicant’s claim that the newspaper where the applicant worked was a small operation. The applicant had said this to explain why the letter from her employer provided in connection with her visitor visa application said that she worked in the department of advertising when she claimed before the Tribunal to be a journalist. She had said that the newspaper office was small and even senior journalists would sometimes help with advertising if the office was short staffed. However, the applicant confirmed in her evidence to the Tribunal that the newspaper where she worked was very large by the standards of Cyprus.
The Tribunal also rejected the applicant’s claim that she and her friends were trying to shift the newspaper more towards the left. The Tribunal considered this to be far fetched given that the newspaper was a long established and conservative newspaper. The Tribunal also rejected the claim that the police regularly visited the manager of the newspaper to ask about the applicant and the newspaper was at risk of being banned because of the applicant’s political activities. The Tribunal considered that claim to be far fetched on the basis that the newspaper was established and conservative. The Tribunal also rejected the applicant’s claim that she as a junior journalist would insist that a conservative right wing newspaper should publish her article. The Tribunal found that claim to be far fetched and implausible.
The Tribunal considered that the applicant had changed her claim about the central event that she claimed to have written an article about. She initially said that the Turkish flag was trampled on and later said that the Turkish flag had been burnt. In relation to the sister’s evidence, the Tribunal considered that there was a significant difference between being detained for one day as the applicant’s evidence had suggested and being detained for longer as the sister’s evidence had suggested.
In relation to how the three men who allegedly detained the applicant would have found out about the article the applicant claimed to have written, the applicant suggested that the editor in chief of the newspaper may have given the article to the owner of the newspaper who might have then passed the article on to the police. The Tribunal did not accept that the editor in chief would have done that. Ultimately, the Tribunal did not accept that the applicant wrote an article about the treatment of the Turkish flag and did not accept that the applicant was detained and assaulted as a result of writing such an article.
The Tribunal went on to note that its conclusion was reinforced by the fact that the applicant had made arrangements to travel to Australia prior to the incident involving the Turkish flag. The applicant had sought to explain the fact that she had made arrangements to leave Cyprus before the event that had precipitated her need to leave had occurred by saying that her family had anticipated that there might be trouble at the Nevroz and had arranged for her to leave. However, given that the applicant had attended many Nevroz celebrations, the Tribunal was unable to accept that the applicant’s family would have anticipated that this Nevroz celebration would have caused such problems that they would have wanted the applicant to leave Cyprus before the celebration had even taken place.
Finally, the Tribunal concluded that it did “not accept that the applicant was detained and assaulted in March 2005 and finds that the applicant has fabricated this aspect of her claims” (emphasis added).There were numerous other aspects of the applicant’s claims that the Tribunal did not accept and, in particular, the Tribunal found that the applicant had fabricated the claim that she had lost her radio job for playing Kurdish songs.
In these circumstances, it cannot fairly be said that the Tribunal rejected the corroborative evidence provided by the applicant’s sister “out of hand”. The sister’s evidence corroborated the applicant’s claim about a detention and assault in March 2005. However, the sister’s evidence was inconsistent with the applicant’s own evidence about the duration of the detention. The applicant said she was taken “that night” after work and released “the same day”. The natural meaning of that claim is that she was taken at about 7:00pm, give or take an hour or two, and released before midnight on the same day. The sister’s evidence was that she was released after “a couple of days” or “one or two days”. Whichever translation is correct, it was certainly more than the matter of hours that the applicant had claimed.
Moreover, the sister’s evidence corroborated the applicant’s evidence that she had been dismissed from her employment. The Tribunal rejected that claim on the basis of evidence contained in a letter and a telephone conversation with the applicant’s employer. Thus, the sister’s evidence differed in material respects from the conclusions reached by the Tribunal on the basis of material put forward by the applicant herself.
This was not a case where the Tribunal disbelieved an applicant for reasons of general implausibility and then rejected corroborative evidence because the Tribunal had already decided that the applicant’s claims were not to be believed. Nor was it a case like WAIJ where the Tribunal disbelieved an applicant about a claim because it was not raised at the first opportunity and the Tribunal then proceeded to disregard the corroborative material.
On the contrary, in the present case, the Tribunal factored the purportedly corroborative material into its assessment of the applicant’s claim to have been assaulted and detained. It noted that the purportedly corroborative material differed from the applicant’s own evidence in relation to the duration of the detention, but also made many other findings in reaching its conclusion that the applicant’s claim to have been arrested and detained in March 2005 was fabricated. Thus, it cannot be said that the Tribunal rejected the corroborative evidence simply because of a discrepancy about the duration of the detention. The Tribunal rejected the applicant’s claim about being detained and assaulted, and rejected the corroborative evidence, because it considered that there were serious flaws in the whole account put forward by the applicant. Amongst the flaws in her account were the apparently false claim to have been dismissed from her employment following the writing of the article, and the making of arrangements to leave Cyprus before the event which had precipitated the need to leave.
The Court in WAIJ did not purport to state exhaustively all of the circumstances in which a Tribunal might properly reject purportedly corroborative material. Obviously, the Tribunal may reject purportedly corroborative material where it does not accord with the applicant’s own evidence or where all of the material, including the corroborative material, considered as a whole and considered judicially, does not persuade the Tribunal of the truth of the applicant’s claims. Indeed, WAIJ was concerned with a variation of a failure to consider the material as a whole. The court in WAIJ said at [27] that the Tribunal was “bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility.” The Tribunal did exactly that in the present case, as the structure of its reasons demonstrates. The purportedly corroborative material was factored in to the Tribunal’s consideration of the applicant’s claim to have been detained and assaulted in 2005.
The applicant’s real complaint appears to be that the discrepancy identified by the Tribunal about the duration of the applicant’s detention was illusory. The applicant noted that the Tribunal said that the sister had said that the applicant was released after “several days” when in fact she had said after “a couple of days” or “one or two days”, depending on which translation is used. The Tribunal also made a mistake about the applicant’s claim, saying she claimed to have been released the next day when in fact she said she was released the same day. These are errors of fact. The net effect of the errors is that there was still a discrepancy, being a maximum of several hours versus a minimum of one day.
The Tribunal, as the trier of fact, was entitled to consider that there was a discrepancy between the applicant’s evidence and her sister’s evidence and give the discrepancy such weight as it saw fit. Generally speaking, errors of fact are errors within jurisdiction. While an error of fact that amounts to a misunderstanding of an applicant’s claim can constitute jurisdictional error, the Full Federal Court said in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [63]:
Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant's claim, may be of no consequence to the outcome.
In the present case, there is no reason to suppose that the errors of fact had any consequence for the outcome. Nor could it be said that the errors of fact in this case constituted a misunderstanding of the applicant’s claim. The Tribunal clearly understood that the applicant claimed to have been arrested and detained in March 2005 in connection with having written a particular article and clearly understood the basic components of that claim. In the circumstances, ground 1 is not made out.
Accordingly, it is unnecessary to consider the first respondent’s submission that a failure to deal with corroborative evidence is only a question of procedural fairness which has been excluded by s.422B of the Act.
Ground 2: failure to deal with a claim
The applicant argued that the Tribunal failed to deal with the claim that the applicant had been abducted and physically and sexually assaulted in March 2005. The applicant argued that the Tribunal dealt with this whole question simply by saying that the applicant had claimed that the owner of the newspaper may have given her article to the police, and because the editor had no reason to give the article to the owner, the Tribunal did not accept that there was any arrest, detention or assault.
The applicant relied on NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55] and [63] where the Full Federal Court (Black CJ, French and Selway JJ) said the following:
[55] Although the discussion in S20 did not set any precise limit upon the scope of factual error which may amount to or indicate jurisdictional error there is, in the case of Refugee Review Tribunal decisions, one circumstance in which it is clearly established that the absence of a finding of a relevant fact may amount to jurisdictional error. Where the Tribunal fails to make a finding on ‘... a substantial, clearly articulated argument relying upon established facts’ that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction – Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at [24] per Gummow and Callinan JJ, Hayne J agreeing at [95]. Although not expressly so identified in that case, the constructive failure to exercise jurisdiction may be seen as a failure to carry out the review required by the Act. The joint judgment of Gummow and Callinan JJ in Dranichnikov described the task of the Tribunal where the applicant relied upon membership of a particular social group. Their Honours said (at [26]):
‘... the task of the tribunal involves a number of steps. First the tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention. That determination in part at least involves a question of law. If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class. There then follow the questions whether the applicant has a fear, whether the fear is well-founded, and if it is, whether it is for a Convention reason.’
In that case the Tribunal should have decided the matter which was put to it by reference to the particular social group defined in the applicant’s submissions – namely entrepreneurs and businessmen in Russia who publicly criticise law enforcement authorities for failing to take action against crime or criminals. Instead it decided whether the applicant’s membership of the group of ‘businessmen in Russia’ was a reason for his persecution.
…
[63] It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant's claim, may be of no consequence to the outcome. It may be "subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected": Applicant WAEE. But as the Full Court said in WAEE:
If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s 414 to conduct a review of the decision. This is a matter of substance, not a matter of the form of the tribunal's published reasons for decision.
…
The first respondent argued that the Tribunal clearly had dealt with the claim that the applicant had been abducted and assaulated in March 2005 and concluded that the claim was fabricated.
Consideration of ground 2
In my view, there can be no doubt that the Tribunal dealt with the claim that the applicant was detained and assaulted in March 2005. The claim of detention and assault was tied up with the claim that the applicant wrote an article in March 2005 which prompted the detention and assault. The Tribunal dealt with the claim by:
a)finding implausible the applicant’s claim that as a junior journalist she had insisted a conservative, right wing newspaper should publish her article;
b)finding far-fetched the applicant’s claim that she and her friends were trying to shift the newspaper to the left;
c)finding far-fetched the applicant’s claim that the newspaper was regularly visited by the police to ask about the applicant;
d)noting that the applicant had initially said that people had trampled on the Turkish flag and later changed her claim to say that they had burnt it;
e)considering that the shift in the applicant’s claim about the flag was significant, given that the applicant claimed to have written an article about it;
f)finding, contrary to the applicant’s claim, that she was not dismissed from her employment ;
g)considering that there was a significant difference between the applicant’s statement of the duration of the applicant’s detention and her sister’s statement of the duration of the applicant’s detention;
h)considering that the applicant did not write an article about the treatment of the Turkish flag, and the article was not given to the authorities, and, accordingly, the applicant was not detained and assaulted as a consequence;
i)finding that the applicant had made arrangments to leave Cyprus before the article was allegedly written;
j)rejecting the applicant’s explanation for having previously made arrangments to leave Cyprus; and
k)finding that the applicant’s claim to have been detained and assaulted in March 2005 was fabricated.
The claim that the applicant was detained and assaulted in March 2005 was considered extensively. Contrary to the applicant’s submissions, the Tribunal’s consideration of the claim was not confined to the unlikelihood of the editor giving the applicant’s alleged article to the owner of the newspaper. The Tribunal considered in detail the context in which the alleged detention and assault was claimed to have occurred and concluded that the applicant’s account was fabricated. This ground is not made out.
Ground 3: natural justice
The applicant argued that the Tribunal denied the applicant natural justice because it provided to the applicant under s.424A of the Act information other than the information it acted upon. The relevant information provided by the Tribunal was as follows:
The letter dated 23 May 2005 by [X] provided to the Tribunal was not accompanied by any indentification documents. Her account of what occurred, particularly her statement that her family members were deported without any reason, is at odds with the newspaper report that they were accused of involvement in a bombing and assisting the PKK.
The information is relevant because it may lead the Tribunal to conclude that [X] was not the author of the letter.
The applicant argued that the s.424A letter had only raised the issue of the identity of X and had not raised the basis upon which X’s evidence was actually rejected. The Tribunal’s reasons for rejecting X’s evidence were as follows:
The applicant claimed that she had a friend whose father had been detained because he was aiding the PKK. She … indicated that her friend was [X] who she had shared a room with at university. A newspaper article which was translated by the Tribunal indicated that … [X’s father, “Z”], whose citizenship had been revoked was deported in 2001 on the grounds he had cooperated with the PKK. The deportation order was cancelled by the CTP government. It was alleged in the article that [Z] and others were caught in the act of assisting and harbouring a person suspected of carrying out a … bombing… . It was reported that the deportation order was cancelled in … 2004. It was noted that the persons who had been charged with [Z] returned to Cyprus soon after the ban was lifted. …
The Tribunal attempted to take evidence from [X]. the Tribunal made it clear to the applicant’s adviser and the applicant that it was concerned about identifying [X] so as to be sure that the person it was taking evidence from was in fact [X]. The Tribunal did attempt to contact her by mobile phone but was unable to get through. The Tribunal arranged for [X] to attend at the Embassy in Nicosia, but the applicant claimed that it was dangerous for her to do so. As explained to the applicant, if [X] had have attended at the Embassy, the Embassy staff would not have been aware of whose case [X] was there to give evidence in relation to; the applicant’s name would not have been mentioned. Embassy staff would not be privy to [X]’s evidence. Further, the applicant claimed to mistrust [Y], who worked at the Embassy. This is despite the fact that earlier the applicant had stated [Y] was a friend and associate of her editor-in-chief. The editor-in-chief had supported her and helped her come to Australia. The Tribunal does not accept that [X] would be at any risk attending at the Embassy or that it would put her family at risk.
The applicant eventually provided a statement which purported to be from [X]. The Tribunal notes that despite the concerns raised with the applicant and the adviser, no identification documents were initially presented with that statement; the other statement provided from the applicant’s sister did have this identification. (emphasis added)
The Tribunal finds it odd that the contents of that statement indicates that [X] claims that her father was deported without any reason and that he had never been charged with any offence. This seemed at odds with the newspaper article that in fact he was accused of involvement in a bombing … and of assisting the PKK. Even if these charges were not true, the Tribunal would have expected them to have been mentioned as being trumped up charges in her statement. Further, she does not mention her father’s associates who were also deported from Turkey at the same time, nor does she mention the fact that their deportation order has currently been lifted. In relation to the identification the applicant’s advisers subsequently sent a photocopy of [X] identification and indicated that they would provide a further statement from [X]. The reasons for the delay in obtaining a statement from [X] was that the applicant could not contact her as she had gone to Turkey. The applicant had provided her mobile telephone number to the Tribunal which the applicant claimed [X] could be contacted on. The applicant did not want [X] to attend at the Embassy and the Tribunal was unable to test her evidence. The contents of her statement does not seem to accord with the events that occurred in Cyprus. For these reasons the Tribunal places little weight on the statement of [X]. Further [X] appears to travel to and from the TRNC and there is no evidence that she has had difficulties with the authorities. For these reasons the Tribunal finds that there is no real chance that the applicant would be persecuted in the reasonably foreseeable future for reasons of her association with [X] or her family.
The applicant argued that pursuant to the High Court’s decision in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592, the Tribunal was obliged to raise with the applicant the issues on which the decision would turn unless they were issues that had been identified in the delegate’s decision. The applicant argued that the Tribunal had only raised with the applicant the issue of X’s identity and not the issues on which the decision actually turned and thus fell into error.
The first respondent noted that the applicant had provided the information contained in X’s letter to the Tribunal so that the exception in s.424A(3)(b) of the Act applied. The first respondent argued that X’s evidence was clearly open to doubt because the Tribunal had been unable to test her evidence. The first respondent noted that the Tribunal had tried to contact X as requested on her mobile telephone number but was unsuccessful in the attempt and had then asked the applicant to ask X to attend the Australian Embassy in Nicosia for the purpose of giving evidence but the applicant had declined to do so.
The first respondent noted that the newspaper article about Z was provided to the applicant during the hearing: see page 31 of the Tribunal’s reasons for decision. The significance of the article was set out in the s.424A letter, namely, that X’s statement was at odds with the newspaper report and it may indicate that X was not the author of the letter. The first respondent also stated that the contents of the newspaper report about Z were country information, so fell within the exception under s.424A(3)(a) of the Act. I reject that argument as the newspaper article dealt with particular people, being Z and others involved in the bombing. The exception only applies where the information “is not specifically about the applicant or another person”.
The first respondent said that no issue arose in this case under s.425 of the Act because the relevant matters were put during the course of the hearing. The first respondent argued that the Tribunal’s handling of the information was a matter of its thought processes and evaluation of the evidence.
Consideration of ground 3
In SZBEL, Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ held unanimously that in fulfilling the obligation under s.425 of the Act to invite the applicant “to give evidence and present arguments relating to the issues arising in relation to the decision under review”, it was necessary for the Tribunal to alert the applicant to the issues on which the case would turn, if those issues differed from the issues on which the decision of the delegate had turned. There was considerable argument at the hearing before this court concerning the effect of s.422B of the Act on the obligation under s.425. Ultimately, the first respondent accepted that the obligations under s.425 are not excluded by s.422B. That is clearly correct as s.425 falls within the Division which s.422B says is to be taken to be an exhaustive statement of the natural justice hearing rule. The delegate’s decision did not deal with the statement from X as it was provided later.
Accordingly, the question is whether the Tribunal adequately alerted the applicant to the issues on which the decision turned, at least in relation to the evidence of X. The s.424A letter extracted at paragraph 44 above indicates that the Tribunal had two reasons for thinking that X might not have been the author of the statement that was presented by the applicant under the name of X. The first was that no identification documents were provided with the statement and the second was that the statement was at odds with a newspaper report. The Tribunal apparently accepted that the newspaper report was correct and considered that the real daughter of the person mentioned in the newspaper report would have been sufficiently familiar with the facts to recount a story that coincided with the newspaper report.
The reasons that the Tribunal eventually gave for giving little weight to the statement of X were as follows:
a)the Tribunal had been unable to take evidence from X because the Tribunal was unable to reach her on the mobile telephone number the applicant provided and because X did not attend the Australian Embassy in Nicosia;
b)X’s statement of material facts about her father was “at odds” with a newspaper article about him; and
c)the applicant claimed to have been unable to contact X in Turkey to provide a further statement even though the applicant had X’s mobile telephone number.
In my view, it must have been clear to the applicant that the Tribunal did not accept at face value the statement of X. The applicant was well aware that the Tribunal wished to contact X and the applicant provided a mobile telephone number for that purpose. The applicant was also well aware that when the Tribunal was unable to get through on that telephone number, the Tribunal arranged for X to attend the Embassy in Nicosia. The applicant was well aware that X would not attend the Embassy because the applicant did not ask her to do so. The applicant was aware that the Tribunal had difficulty with X’s statement because it was at odds with the corresponding newspaper report. All of these matters were made clear to the applicant either through the s.424A letter or at the hearing before the Tribunal.
There was one aspect of the Tribunal’s reasoning in relation to X that the Tribunal appears to have not drawn to the applicant’s attention. That aspect is that X appeared to have been able to travel freely without difficulty from the authorities. The information underlying this conclusion was provided to the Tribunal by the applicant as an explanation for her inability to be able to contact X and promptly obtain a further statement. As this was information that was provided by the applicant to the Tribunal, it did not need to be the subject of a s.424A letter.
Nor do I consider that X’s ability to travel freely was an issue in the proceeding such that the Tribunal needed to alert the applicant to the Tribunal’s evaluation of that evidence. X’s ability to travel freely is mentioned in the Tribunal’s reasons after it has already stated “for these reasons, the Tribunal places little weight on the statement of [X]”. The Tribunal’s point about X being able to travel freely appears to have been an afterthought derived from the applicant’s purported explanation for being unable to promptly obtain an additional statement from X. I do not consider that there was any need to specifically draw the applicant’s attention to the Tribunal’s rejection of this explanation in circumstances where the Tribunal had made it abundantly clear that it had serious doubts about the authorship of the statement that purported to be from X.
The applicant’s case on this ground was that the Tribunal had only alerted the applicant to a deficiency in X’s evidence consisting of the absence of identification documents. The applicant said identification documents were provided which the Tribunal apparently accepted.
However, in my view, the Tribunal’s s.424A letter was not confined to the absence of identification documents. The Tribunal stated expressly that there was also an issue with the statement being at odds with the corresponding newspaper report. The s.424A letter spelled out that the consequence of these problems was that the Tribunal might not accept that X was the author of the statement. Although a photocopy of X’s identification document was subsequently provided, it is not clear that the Tribunal accepted that the statement was in fact from X, the daughter of Z. Indeed, it is implicit in the Tribunal’s reasoning that the actual daughter of Z would have recounted the details more accurately than the author of the statement had. Consequently, it is implicit in the Tribunal’s reasoning that the author of the statement was not the real X, being the daughter of Z. That was exactly the point the Tribunal made in the s.424A letter when it said that X might not be the author of the statement. This ground is not made out.
Conclusion
As none of the grounds of review has been made out, the application must be dismissed with costs.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate: Melissa Gangemi
Date: 8 May 2007
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