SBLD v Minister for Immigration - [2006] FMCA 1270

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SBLD v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1270

MIGRATION – Application for judicial review of a decision of the Refugee Review Tribunal to refuse to grant a protection visa – applicant alleged jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.51A, 357A, 422B, 422B(1), 422B(2), 483
Migration Litigation Reform Act 2005 (Cth)
Judiciary Act 1903 (Cth), s.39B, Pt.8

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Kioa v West (1958) 159 CLR 550
Lay Lat v Minister for Immigration and Multicultural Affairs [2006] FCAFA 61

Applicant:

SBLD

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

ADG317 of 2005

Judgment of:

Lindsay FM

Hearing date:

16 May 2006

Date of last submission:

16 May 2006

Delivered at:

Adelaide

Delivered on:

1 September 2006

REPRESENTATION

Applicant:

In person

Counsel for Respondents:

Ms K. Bean

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That the application filed on 9 December 2005 be and the same is hereby dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADG317 of 2005

SBLD

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application brought under the Migration Act 1958 (Cth) (the “Act”) which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”) of 7 November 2005. The application was filed on 9 December 2005. The application falls to be determined in accordance with the Act as it stood at the time the application was made and hence the changes to the Act effected by the Migration Litigation Reform Act 2005 (Cth) are not relevant to the determination of this application.
The application is made pursuant to s.483A of the Act. This Court’s jurisdiction pursuant to that section is “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The relevant jurisdiction is that pursuant to s.39B of the Judiciary Act 1903 (Cth), but subject to the limitations under Part 8 of the Act. Those limitations have the effect that I cannot set aside the Tribunal decision unless I am satisfied that the decision was affected by jurisdictional error as that concept was explained in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. I do not have the power to decide whether the applicant is entitled to a protection visa. If satisfied of jurisdictional error I can only refer the matter back to the Tribunal for determination.
The application to the Tribunal followed a refusal of a delegate of the Minister on 7 July 2005 to grant a protection visa. The applicant was not legally represented before me but he had the assistance of a Migration Agent who had also prepared his outline of submission.
The application itself alleged jurisdictional error only in the most general of terms and the Court has had to have regard to the submissions made by the Migration Agent including the written submissions, to discern the basis of the claims in relation to the jurisdictional error or errors said to have been committed by the Tribunal.
I agree with the submission by counsel for the respondents that having regard to those written submissions the claims of jurisdictional error were three in number:
(1)That the Tribunal did not have sufficient regard to the contents of a report submitted to the Tribunal by a Ms Follese. Ms Follese is a social worker with the Refugee Health Service. Her report addressed matters relating to the applicant’s state of mind at the hearing before the Tribunal and his ability to accurately recall events.
(2)The Tribunal did not give any or any sufficient regard to the circumstance that the applicant’s statutory declaration of 28 September 2005 was prepared without the assistance of an interpreter. If it had done so then the Tribunal would not have had the concerns as to alleged inconsistencies between the account in that document and other accounts given by the applicant of his experiences.
(3)The Tribunal made improper use of the country information upon which it relied and insufficient use of the country information provided by the applicant.
The applicant advanced his claim for a protection visa in the following way.
(1)In his application of 12 May 2005.
(2)In a submission from his adviser of 29 September 2005.
(3)In a statutory declaration of 28 September 2005.
(4)In the oral evidence at the hearing on 7 October 2005.
(5)In a further written submission of his adviser dated 11 October 2005.
(6)In the report of Ms Follese (referred to above) received following the hearing and arising out of his attendance upon her on 1 November 2005.
The applicant entered Australia on 28 March 2005. He travelled to Australia on an Italian passport in a name other than his own. He is a native of Albania. He is a person of the Catholic faith. The town in which he lived in Albania was Shkoder.
The applicant’s claim for entitlement to a protection visa arises from his claim to be fearful of being killed if he were to return to Albania. That fear arises because he is Catholic and because he is not a Muslim. He says that if he were to return to Albania he would be harmed or killed by members of the Muslim religion. Their desire to harm or kill him is on account of a relationship he entered into with a Muslim woman. That relationship lasted for four or five years commencing in 1999 or 2000. The applicant contended that the authorities in Albania were unwilling or unable to protect him.
The applicant failed before the Tribunal to satisfy the Tribunal of his entitlement to a protection visa because the Tribunal did not accept key aspects of his claims. The rejection of these key aspects of his claims arose principally, but not exclusively, on account of the inconsistencies identified by the Tribunal in the various accounts given to it by or on behalf of the applicant as to his experiences.
The important findings of the Tribunal were the following:
(1)That the applicant provided inconsistent evidence on the issue of the sequence of events relating to threats made by his girlfriend’s brother and his visit to the girlfriend’s parents’ home.
(2)That he provided inconsistent accounts of the number of occasions on which he visited his girlfriend’s parents.
(3)That the applicant provided inconsistent evidence as to whether the girlfriend’s brother became aware of his relationship with her before or after an occasion on which he was threatened by the brother, and as to whether there were separate incidents each involving threats made to him by the brother.
(4)That the applicant had given inconsistent evidence as to whether he had made admissions as to his relationship with his girlfriend to the girlfriend’s brother.
(5)That having regard to these inconsistencies the applicant did not ever come into conflict with his girlfriend’s family, that his girlfriend’s family did not threaten to harm him and that he did not depart Albania illegally because of any threat of harm by them.
(6)That the Tribunal had “some difficulty” accepting he was ever in the relationship described by him, this finding relying principally upon his inconsistent accounts as to whether he had met the girlfriend at aged 23 or had known her since childhood.
(7)That the country information indicated generally amicable relations between Muslims and the two major branches of the Christian faith in Albania.
(8)That the chances of the applicant being persecuted by the girlfriend’s family or their associates, even if he had been in a relationship with her, was remote.
One matter on which the Tribunal accepted the applicant’s explanation was that raised by the visit of officers of the Department of Immigration and Multicultural Affairs to one of two restaurants the applicant had claimed to work at. Persons at that restaurant had claimed not to know the applicant. The Tribunal accepted the applicant’s explanation that they had done this out of fears for their own safety as a plausible explanation.
The argument that the inconsistencies between the applicant’s account in his statutory declaration and that given in his other accounts is explicable on account of the circumstance that the statutory declaration was prepared without the benefit of an interpreter, is addressed by the Tribunal (CB page 186) when it says:
The Tribunal notes that the applicant’s statutory declaration was prepared with the assistance of his adviser. Given that the statutory declaration and submission represented the first occasion on which the applicant provided detail of his main claims, the Tribunal is satisfied that the importance of providing an accurate account would have been apparent to the adviser. The statutory declaration sets out the applicant’s claims at some length and in some detail. The fact that the adviser’s submission specifically referred to an encounter with Mimoza’s brother prior to the applicant’s visit to her parents suggests that the adviser was confident of the accuracy of the information provided by the statutory declaration in this regard. In these circumstances, the Tribunal does not accept that the absence of an interpreter provides an explanation for the numerous inconsistencies in relation to key aspects of the applicant’s claims.
It cannot be said that the Tribunal has not addressed this aspect of the applicant’s claim. It was unpersuaded that the inconsistencies were explicable in this way. The Tribunal might have expressed itself in clearer language, but the fundamental attitude it took was that the account provided by the applicant was detailed and the adviser who assisted in the presentation of the declaration can be taken to have understood the importance of conveying the information accurately. The Tribunal was not provided with any information which would entitle it to have drawn a different inference. The account given in the statutory declaration was contradicted by the evidence given by the applicant before the Tribunal (CB page176). It was his oral testimony which contradicted the statutory declaration. The Tribunal noted that similar claims were made in the submission prepared by the applicant’s adviser prior to the hearing. The finding as to this inconsistency was not an isolated one, but part of a broader concern the Tribunal had as to the consistency of the applicant’s claims. As the Tribunal notes (CB page 22) :
The applicant’s inability to provide a consistent account of such fundamental aspects of the claimed difficulties with Mimoza’s family causes the Tribunal to find that the applicant’s account of such difficulties lacks credibility. The Tribunal does not accept that the applicant ever came into conflict with Mimoza’s family.
Findings as to credibility are a function for the Tribunal and not for this Court. The Tribunal has adverted to the applicant’s explanation for one of the inconsistencies, but rejected it. The rejection does not constitute a jurisdictional error.
There is no doubt that the Tribunal also relied upon the country information in assessing the applicant’s claim as to a well-founded fear of persecution. The independent country information is summarised at CB pages 182 and 183. The Tribunal also took into account a letter from the applicant’s adviser received after the hearing which referred to an April 2005 report prepared by an organisation known as ‘World Organisation Against Torture’. The Tribunal took the opportunity to find a copy of the report, but was apparently unable to find any part of it relevant to the applicant’s circumstances, the applicant’s advisers not having referred to any specific section of the report (see CB page 25).
There is no doubt but that the Tribunal was entitled to rely on the country information in coming to its views provided it has drawn the applicant’s attention to those parts of it that it proposes to rely upon. It appears (CB page 191) that the Tribunal did indeed put this information and the reasons for the Tribunal’s reliance upon it to the applicant. The applicant’s written submission to this Court appears to ask the Court to take a different view of the country information. No reason is advanced as to why the Court should take that step even if it were appropriate for it to do so. The Tribunal did not fall into jurisdictional error by taking the country information into account in the way in which it did.
The applicant also attempted to explain the inconsistencies the Tribunal pointed to in his various accounts by reference to his being nervous, stressed or confused at the hearing. The Tribunal was not satisfied that the inconsistencies could be explained in that way (see CB bottom of 22, top of 23). In the context of these findings the Tribunal took into account the report from Ms Follese. Ms Follese’s report averred that the stress the applicant was experiencing was affecting his memory, but this did not constitute an opinion on any matter on which Ms Follese claimed expertise. The report from Ms Follese (which is set out at CB 158–159) really constitutes no more than an account of what the applicant has told her. It is difficult to see what her report added to what the applicant had already attempted to offer as his explanation for the inconsistencies. There is no jurisdictional error apparent in the way in which the Tribunal dealt with this issue.
Each of the complaints that the applicant has made have been accompanied by general assertions that the applicant has been denied procedural fairness. This is especially so in relation to the use of the country information. I have scrutinised the Tribunal’s decision to attempt to identify any occasion of the denial of procedural fairness to him; even though the argument in relation to same has not been clearly put. I have been unable to identify any such occasion (see Kioa v West (1985) 159 CLR 550 at 582-586). I have carried out that exercise notwithstanding the terms of s.422B(1) of the Act.
Had it been necessary to have regard to that section, the Court accepts that the controversy between single Justices of the Federal Court as to the meaning of that section or its equivalents in s.51A and s.357A of the Act, has been authoratively determined in Lay Lat v Minister for Immigration and Multicultural Affairs [2006] FCAFC 61. Whilst that was a case that dealt with the powers of a delegate of the Minister in the context of a business visa application, nothing turns on that. The finding of the intention to exclude common law rules which s.51A(1) was found to provide (see paragraph 68 of the judgment of the Full Court) applies with equal force to the section of the Act applicable to the Tribunal’s obligations, namely s.422B.
No failure to comply with the sections referred to in s.422B(2) has been established.
There being no ground of jurisdictional error established the application will be dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Lindsay FM

Associate: Ms K. Clarke

Date: 1 September 2006.