SBDD v Minister for Immigration
[2006] FMCA 1031
•24 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SBDD v MINISTER FOR IMMIGRATION | [2006] FMCA 1031 |
| MIGRATION – Protection visa – Refugee Review Tribunal rejects claim for refugee states on credibility grounds – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.483A, 424A, 36(2), 91R, 91S |
| Plaintiff S157/2002 v Commonwealth (2002) 211 CLR 476 Antoun v The Queen [2006] HCA 2 Minister for Immigration & Multicultural & Indigenous Affairs v Jia 92001) 178 ALR 421 Re Refugee Review Tribunal Ex parte H (2001) 179 ALR Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Re Minister for Immigration & Multicultural & Indigenous Affairs, Ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SBDD |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File number: | ADG306 of 2005 |
| Judgment of: | Lindsay FM |
| Hearing date: | 8 March 2006 |
| Delivered at: | Adelaide |
| Delivered on: | 24 July 2006 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr. K. Tredrea |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The order will be:
That the application filed on 21 November 2005 do stand dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG306 of 2005
| SBDD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application filed on 21 November 2005 in which the applicant seeks orders by way of judicial review from a decision of the Refugee Review Tribunal (the “Tribunal”) of 30 September 2005.
The application falls to be determined under the Migration Act 1958 (Cth) (the “Act”) in the form it had prior to the Migration Litigation Reform Act 2005 (Cth). That Act was proclaimed on 24 November 2005 and, for all relevant purposes in relation to this application, was prospective in its effect.
The Tribunal’s decision was itself a review of the decision made by a delegate of the Minister on 20 April 2005 refusing an application by the applicant for a protection (class XA) visa.
This application is made pursuant to s.483A of the Act. Under s.483A the Court has “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. That jurisdiction in relation to applications such as the one before the Court is the jurisdiction under s.39B of the Judiciary Act 1903 (Cth) subject to those limitations described in Part 8 of the Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 those limitations require this Court to identify jurisdictional error in the proceedings or reasons of the Tribunal. If such error is found, this Court has the power to set aside the Tribunal’s decision and to remit the matter to the Tribunal for re-hearing. I have no jurisdiction to grant the protection visa.
Section 36(2) of the Act provides that a protection visa is available to a person to whom the Minister is satisfied that Australia has protection obligations arising under the Status of Refugees Convention 1951 and Status of Refugees Protocol 1967.
A refugee is defined by Article 1A(2) of the Refugees Convention as:
“Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act qualify, in some respects, that definition.
The applicant arrived in Australia in October 2004 and lodged his application for a protection visa on 25 November 2004.
The Tribunal had the following evidence before it. It had the oral evidence of the applicant. When he appeared before the Tribunal to give his evidence the applicant was represented by a migration agent and assisted by an Arabic interpreter. He filed a written application before the delegate which was accompanied by a statement. Those documents were before the Tribunal. He provided a statutory declaration dated 23 March 2005 and a written submission from his agent of the same date was also provided. Various documents were also provided to the Tribunal by the applicant or his migration agent. The tapes of his interview with the delegate on 30 March 2005 were also before the Tribunal. A further submission dated 9 July 2005 was provided to it. In addition, following the applicant being provided with the information in accordance with s.424A of the Act, the applicant provided further comments. A psychiatric report was provided as was a statutory declaration by a person claiming to have known the applicant in the Sudan.
The evidence before the Tribunal, therefore, came from a variety of sources.
The applicant is qualified as a medical practitioner. He graduated in 2002. He had spent some time at the Academy Teaching Hospital in the Sudan, but in the five months preceding his travel to Australia he had been a medical officer at the Khartoum Teaching Hospital.
The applicant said that he had obtained his passport in March 2004 and that he travelled to the United Arab Emirates in March 2004, to Syria in June 2004 and to Egypt in August 2004. He had returned from those countries to Sudan on each occasion.
The applicant said that he was born in the Southern Darfur region of Sudan to an African father and an Arabic mother from the Benihalba tribe. He said that he was discriminated against as a Benihalba man throughout his life.
He said that he had been a member of the Democratic Unionist Party (DUP) since 1997 and had won office on behalf of that Party at a student union election in 2000.
He claimed that he had been arrested and tortured and harassed by members of the Sudanese security services on account of his political activities beginning in 1997. He had had his nose broken during one encounter with the security services.
He said that he had attracted the special attention of the security services on account of his involvement in a committee of medical practitioners at the Academic Educational Hospital (AEH) and the Khartoum Hospital and had been involved in arrangements for strike action.
The applicant says that he was able to leave the Sudan to attend a medical conference in Sydney in 2004, only with the help of friends who were able to assist him in evading security checks at Khartoum airport. He said that following his final departure from the Sudan to travel to Sydney that his brother had been arrested and his sister subjected to harassment by the security services. He said that his father had been threatened many times. He said that his family had informed him that they had been told he would be subject to detention and torture if he returned to the Sudan.
The applicant was fearful that if he returned to the Sudan he may be killed by the security services or put in jail or be obliged to travel to the Darfur region as part of military service that had not been completed by him.
It was plain, then, that the applicant’s fear of persecution related principally to his political activity or opinion, but also to his racial background.
The Tribunal did not believe the applicant in relation to a number of factual contentions which were fundamental to his claim for refugee status. The findings and reasons for decision of the Tribunal are detailed, but can be summarised as follows:
1. The inconsistency of his claims as to where he had been born and his being a Benihalba man. In his original application the applicant stated he had attended school in Saudi Arabia from the age of eight years. He later contended to have lived in Southern Darfur until the age of 12 years. The Tribunal did not accept his explanation for the change in account of his provenance.
2. The coincidence of the date of “30.02.03” appearing in the applicant’s original statement and the same date appearing on a letter from the Medical Doctor’s Committee provided the Tribunal by the applicant’s agent. The dates were in relation to different events. The applicant said in his statement that he had spoken at a rally on that date and the date happens to be that which is borne by the document purporting to be a letter from the Medical Doctor’s Committee. Central to the Tribunal’s use of this coincidence was its view that the use of that date on each occasion was a mistake. The Tribunal thought it highly unlikely that the authors of two unrelated documents would make the same mistake. The inference it drew was that the letter from the Medical Doctor’s Committee was inauthentic.
3. The inconsistency of the applicant’s accounts in relation to two letters sent to the Australian Embassy in Cairo in support of the applicant’s request for a visa to travel to Australia. In the statutory declaration the applicant had said the two letters were false. At the hearing before the Tribunal he had said they were authentic. Conversely a third letter dated 24 October 2004 from a deputy manager at the Khartoum Teaching Hospital was said to be authentic in the applicant’s statutory declaration, whereas before the Tribunal he was unable to vouch for its authenticity because he had not in fact sighted the letter. The response provided by the applicant when given the s.424A invitation by the Tribunal did not assist the Tribunal in reconciling these varying accounts.
4. The Tribunal regarded as fundamentally inconsistent the applicant’s claims of discrimination and persecution, on the one hand, and his account of his graduation from university employment as a doctor, and travel in and out of Sudan on three occasions in 2004 on his own passport, on the other. The Tribunal was not convinced with his explanation of the mechanism by which he was able to travel in and out of the Sudan (which was essentially with the assistance of a person who was a secret member of the DUP). The applicant’s alternative explanation that there was simply too many opposition members who were medical practitioners or graduates from the university for the regime to persecute, was found by the Tribunal to unconvincing. He said that Sudan was in need of doctors and that use of passports by members of the opposition was not uncommon.
As a result of the cumulative effect of these matters, but especially the latter, the Tribunal reject the applicant’s claims of discrimination or persecution. It specifically found that he was not arrested on any of the three occasions that he claimed. The Tribunal specifically rejected that he required the assistance of any secret member of the DUP to travel in and out of the country. It regarded the letter from the Medical Doctor’s Committee as a fabrication. It regarded the letter from the general director of the Khartoum Teaching Hospital as a fabrication. It rejected the contention that he was involved with the Medical Doctor’s Committee. It rejected his contention that he was detained or ill treated after speaking at a political seminar at the Academic Educational Hospital in 2003, or following a meeting at the Khartoum Hospital in 2004. It rejected all of his contentions as to the views his family had as to the intentions of the security forces if he returned to the Sudan. It found that his claims to have connections with the Darfur region either in terms of family or employment or military experience, as fabrications. The Tribunal did not even accept he was a Benihalba man.
The Tribunal summarised its findings as follows:
“Having regard to the view I have formed of the Applicant’s credibility I do not accept that, because he did not return to Sudan after the conference which he came to Australia to attend, he will be treated as a traitor and persecuted for reasons of his imputed political opinion opposed to the Sudanese Government. Even if the Applicant were to be identified as a failed asylum seeker on his return to Sudan I do not accept that there is a real chance that he would be persecuted for reasons of any political opinion imputed to him on the basis of his having applied for asylum overseas. As noted in the Tribunal’s letter dated 1 August 2005, the UK Home Office has previously suggested that failed asylum seekers returning to Sudan with proper travel documentation encounter no difficulties (UK Home Office, Immigration and Nationality Directorate, Country Information and Police Unit, Sudan – Country Report, April 2004, paragraphs 6.258-6.259). In its latest report the UK Home Office notes that some half a million refugees are expected to return to Sudan due to the improved security situation in the South (see paragraphs 6.214-6.216).
Having regard to my findings above I do not accept that there is a real chance that the Applicant will be persecuted for reasons of his real or imputed political opinion, his race or any other Convention reason if he returns to Sudan now or in the reasonably foreseeable future. I am not satisfied that the Applicant has a well-founded fear of being persecuted for a Convention reason if he returns to Sudan. It follows that he is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Consequently the Applicant does not satisfy the criterion set out in paragraph 36(2)(a) of the Migration Act for the grant of a protection visa nor is he the spouse or a dependant of a person who holds a protection visa as required by paragraph 36(2)(b).”
The applicant was represented by a legal practitioner when he filed his application in this Court. That application focused upon two matters which it said gave rise to jurisdictional error, namely the misunderstanding of the ways in which the Arabic calendar differs from the western calendar, and the claim that the Tribunal’s decision indicated apprehended bias. The applicant was unrepresented at the hearing before me. He augmented the application with a short written statement which I set out in full:
“The intended and small mistakes which I made in filling the original application for protection visa could not determine my life, and my future, my happiness and the justice which I should obtain.
Filling the original application was done in a hurry and in anxiety giving a short, easy and wrong answers to simple questions do not mean I was not telling the truth or trying to misguide the case officer in D.I.M.I.A. when I filled the original application I was so excited to be outside Sudan and living in a country where the human being is treated well and respected for what he is. I was also suffering from trauma and depression because of suffering and pain I went through in Sudan through all my years of struggle for democracy and freedom for all my people.
The delegate of the refugee review tribunal rejected my application because I made mistakes in writing the correct answer regarding the place of part of my primary school education, and because I called my self an ‘ARAB’ all my explanation in a statement to the tribunal an in the interview went on deaf ears. My words, the documents I gave as evidence, the support letters, I handed in from the psychiatrist, form the (democratic union party) dup, secretary general and many others are all were considered unworthy, and fabricated, the officer in charge did not want to believe any word I said or wrote, it is clear that he did not take any consideration to the report of the, social worker and the psychiatrist who were Australian and have to follow the code of ethics for their profession. Both of them staled in their reports that I suffer post – traumatic stress disorder and that affected my concentration, and that what made me answer wrongly some of the simple questions in my original application.
The delegate of the refugee review tribunal also did not accept the doctor’s report which confirmed my statement that my nose us broken, and resulted in not believing my words that my nose was broken because of the torture I received during my detention.
The delegate put a lot of weight on the issue of the date on some document. My credibility was damaged because he refused to accept my affidavit and many others that the Arabic calendar is different that the western one. It was a simple typing error.
The delegate did not even try to listen to arguments and reasons when I answered his questions. He had his mind and decision set even before I was interviewed by him.
The delegate ignored the fact that if I get deported on sent back to Sudan I will definitely be persecuted.”
During the course of the hearing I was somewhat concerned with the use made of the date of the 30 February 2005 in the two documents. The application appeared to suggest that such a date existed in the Arabic calendar. If that is the case, then whilst there may be a co-incidence in such a date bearing upon two different documents, being a date which is unknown to the western calendar, then any basis for drawing an inference that one of the documents was fabricated would disappear. But the applicant appears to take the position in his document responding to the s.424A particulars (appeal book page 219) that his use of that date in his original statement was a mistake. As he says in paragraph 7 of his responsive document:
“I also wish to mention that the printed date of 30 February on an earlier document was a typing error.”
In that paragraph he does not tell us whether the use of the date by the Medical Doctor’s Committee was also an error. He simply does not respond to the appearance of that date on the letter. At the end of the hearing I was left in some considerable doubt as to whether he was in fact contending that 30 February 2005 is a date that exists in the Arabic calendar such that a use of that description of a day would not be thought to be manifesting an error. I am unable to come to any conclusion about that on the material before me. However, even assuming that such is the position, and that he intended to so contend and that his use of that date was an error only in the sense that he got his date wrong and not that such date did not exist, is it very far from being a factual matter on which the Tribunal’s reasoning and decision turns. It is a factual matter in which the Tribunal came to a decision that the applicant had engaged in fabrication of a document. It was not the only such matter. It is not possible, however, to conclude that absent its reliance on this particular matter, the Tribunal’s determination could possibly have resulted in any other conclusion. It is clear that the Tribunal regarded the critical credibility finding to be the general one relating to the disparity between the applicant’s claims of discrimination and persecution and his student and working experience on his own account. This is referred to (CB page 266) as “the central problem” with the credibility of the applicant’s claims.
I am very far from being satisfied that the use of the calendar issue by the Tribunal constituted a jurisdictional error.
The claim that the conduct of the hearing by the Tribunal was vitiated by apprehended bias was one raised in the application, but not pursued by the applicant in person. I do not have a transcript of the proceedings before the Tribunal. The issue is raised in the final ground of the Application. I set out the ground in full:
“It is also submitted that the Decision was induced or affected by apprehended bias. The question for consideration when considering apprehended bias is not the state of mind of the decision-maker but the state of mind of a reasonable bystander properly informed. In this judicial review hearing, the Applicant will be relying on the apprehended bias category of conduct and submits that the manner in which the Tribunal Member conducted his enquiry would allow a reasonable lay-observer to conclude that the Tribunal Member might not bring an impartial mind to the question that had to be determined. It is submitted that the manner in which the Tribunal Member conducted his enquiry and the comments made by him in response to answers given by the Applicant, would allow a reasonable lay-observer to conclude the Tribunal might not bring and impartial mind to the question that had to be determined.”
The test of apprehended bias is not in doubt and has been stated in a number of High Court decisions (Antoun v The Queen [2006] HCA 2, see especially Hayne J at [51] and the footnote to that paragraph). The question is whether it can be established that a fair minded lay person might reasonably suspect that the judicial officer did not bring a fair and unprejudiced mind to the determination of the proceedings.
It was accepted in Minister for Immigration & Multicultural & Indigenous Affairs v Jia (2001) 178 ALR 421 that the Court can set aside a decision for jurisdictional error in cases which apprehended bias is established. The matter was given more specific formulation by the High Court in respect of Tribunals in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR at 425.
The claim of the applicant in this regard is made without any particularity and in the face of the fact that no complaint in relation to the Tribunal’s conduct of the matter was raised by the migration agent representing the applicant at the hearing. In any event, the careful way in which the Tribunal put the significant issues to the applicant to provide an opportunity for his response and the comprehensive and apparently fair evaluation of the facts contained in the Reasons is suggestive of a mind open to argument and responsive to the material presented. The ground is presented in the application as really little more than an assertion of apprehended bias.
I am not satisfied that apprehended bias has been demonstrated and consequently no ground of jurisdictional error in this regard is established.
Having carefully considered the Reasons, it seems to me that the conclusions the Tribunal came to in respect of factual matters was reasonably open to it. Findings in relation to credibility are a function for the Tribunal. It is not for me to review the merits of the Tribunal’s decision in any event (see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and Re Minister for Immigration & Multicultural & Ethnic Affairs, Ex parte Durairajasingham (2000) 168 ALR 407 at [67]). The balance of the matters raised in the applicant’s own summary (see paragraph 23 hereof) fall into that category.
No jurisdictional error being apparent in the Tribunal’s determination, the application is dismissed.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Associate: Ms K. Clarke
Date: 24 July 2006
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