SXBB v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCAFC 186

FEDERAL COURT OF AUSTRALIA

SXBB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 186

MIGRATION LAW – whether the primary Judge erred in holding the Refugee Review Tribunal had not made a jurisdictional error or misunderstood the appropriate task

Federal Court of Australia Act 1976 (Cth) s 14
Migration Act 1958 (Cth)

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 considered

SXBB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS, GILES SHORT MEMBER REFUGEE REVIEW TRIBUNAL AND PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

SAD 68 OF 2005

DOWSETT AND LANDER JJ
2 SEPTEMBER 2005
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 68 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

SXXB
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

GILES SHORT
MEMBER REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGES:

DOWSETT AND LANDER JJ

DATE OF ORDER:

2 SEPTEMBER 2005

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the respondents’ costs of the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 68 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

SXBB
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

GILES SHORT
MEMBER REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGES:	DOWSETT AND LANDER JJ
DATE:	2 SEPTEMBER 2005
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This matter was originally heard by Justices Hill, Dowsett and Lander. However Hill J died whilst the matter was reserved. The parties have agreed, pursuant to s 14(3) of the Federal Court of Australia Act 1976 (Cth) that the matter be determined by the remaining members of the Court, Dowsett and Lander JJ.

2. On 7 September 2004 the Refugee Review Tribunal (the “Tribunal”) affirmed a decision of a delegate of the first respondent (the “Minister”) to decline to grant a protection visa to the appellant pursuant to the Migration Act 1958 (Cth) (the “Act”). On 14 March 2005 Finn J refused an application for review of the Tribunal’s decision. This is an appeal from that decision. The facts of the case appear in pars 2 to 12 of his Honour’s reasons as follows:

   ‘FACTUAL SETTING

   2.The applicant is a Sudanese citizen who arrived in Australia in March 2003 and applied for a protection visa on 2 May 2003.  The basis of his application was that he feared persecution because of his political opinion.

   3.Put shortly his evidence was that (i) his father had been a member of the Democratic Unionist Party (“DUP”) in Sudan and that he had been recruited by the party while in high school; (ii) he participated against the totalitarian regime of the Islamic National Front; (iii) at university he had been engaged heavily in organisational efforts for the DUP; (iv) security force members had come to his house looking for him; (v) he was arrested in 1996 with other DUP members after submitting a petition to the United Nations office in Khartoum, was detained for six days and was insulted and tortured; (vi) after being politically inactive for 12 months, he was arrested at a demonstration organised by women´s organisations; (vii) he was held in an office for three days where he was tortured before being transferred to the Kober Prison where political prisoners were detained and he was kept there for three months and he was beaten during that period; (viii) his brother bribed a prison officer to secure his release; (ix) he was taken to his home by two officers from whom he escaped and then party members secured his exit from Sudan to the United Arab Emirates (“UAE”) using the assistance of a police officer who was a secret party member; (x) he continued his political activities for the DUP in the UAE but from 2003 he began to receive threatening calls, his flat was searched and an attempt was made on his life; (xi) the Sudanese Embassy renewed his passport while he was in the UAE; (xii) after four years in the UAE he decided to flee and come to Australia; (xiii) he had employment in the UAE and a worker’s sponsorship; (xiv) he could not return to the UAE as the Sudanese government had influenced the Government of the UAE to cancel his residence.

   4.From the time of his visa application, the applicant provided the Tribunal with various documents.  These included copies of what purported to be documents relating to his employment in the UAE, a certificate cancelling his worker’s sponsorship in the UAE, a membership card for the “Federal Democratic Party”, a letter to the Tribunal from a Mr Sharief (see below), and an Islamic newspaper which contained an article concerning him and which is central to this application.

   5.Mr Sharief was a school friend of the applicant whom he met again in Australia while visiting Melbourne from the Sudan.  According to his letter to the Tribunal he returned to Sudan and later he returned to Australia where he told the applicant that, while he was in Sudan, two persons purporting to be the applicant’s friends came to see him and he told them the applicant was in Australia.  He also said the applicant’s mother told him “the undercover” were still disturbing the house asking about the applicant.

   6.The Sudanese newspaper article was sent to the applicant by his brother.  In a telephone call from his brother on 1 July 2004, he was told that his brother was given the article by a person on a motor cycle which was typical of “the undercover” motor cycles.  The article was provided to the Tribunal in translation before the hearing.  It dealt generally with difficulties faced by refugees when searching for a safe haven and it took as its focus the involvement of the United Nations and its committees in this.  In one of its paragraphs it stated that:

   “[The applicant], a refugee in Australia, said that these committees do not usually concentrate on human rights problems facing refugees, but they rather concentrate on victims of human right violation inside their own country.  Such discrimination is artificial, and it limits the offering of much needed assistance to victims of human right violation.”

   7.At the beginning of the Tribunal hearing originals of various documents already provided by the applicant including the newspaper were produced to the Tribunal.

   8.The Tribunal in it’s reasons described its close questioning of the applicant at the hearing in relation to his DUP membership and his inability to answer correctly or at all some number of his questions about the party.  He was similarly quizzed about his arrests, imprisonment and escape and about the cancellation of his UAE residence permit notwithstanding that the Sudanese Embassy in the UAE renewed his passport in 2002.

   9.In relation to the newspaper article the Tribunal described its questioning as follows:

   “I noted that the Applicant had produced what he claimed was an article published in a newspaper in Sudan which purported to quote him and identified him as a refugee in Australia.  I asked the Applicant how the newspaper had come to quote him.  The Applicant said that his name was mentioned in the article as a refugee living in Australia.  I noted that according to the translation of the article he had produced it quoted him:

   “[The applicant], a refugee in Australia, said that these committees do not usually concentrate on human rights problems facing refugees …”

   The Applicant said that he had not printed the article and he did not have anything to do with the article. I asked him how the article had come to quote him.  He said that the Government knew that he was outside Sudan.  They wanted to mention him as a Sudanese refugee in Australia.  I asked the Applicant if he had given interviews since he had been in Australia, identifying himself as a refugee. The Applicant said that he had not.  I asked him again how the newspaper had come to quote him as a refugee living in Australia.  The Applicant referred to the fact that his friend Mr Sharief had visited Sudan and had been approached by two people saying they were friends of his but who were not.  He said that obviously these people had been from the security forces.  He said that he believed that these two people had had something to do with the newspaper article.

   I asked the Applicant if he was saying that the Sudanese Government had found out that he was an applicant for refugee status in Australia because his friend had told them that and that they had then gone to the length of printing an article in a newspaper which the Applicant could produce to the Tribunal to demonstrate this fact.  The Applicant said that the Sudanese Government would not do anything to help him.  He said that they had wanted his family to be ashamed of him, as someone who was against the Sudanese Government and who was outside the country.  I noted that the Applicant´s family already knew that he was against the Sudanese Government and that he was outside the country because they had helped him to escape.  The Applicant said that his family did not have the same social status they had had before:’ emphasis added.

   10.The Tribunal also put to the applicant that the information available to it suggested that failed asylum seekers returning to Sudan with proper travel documentation encountered no difficulties.  The applicant replied that this was just a trick.

   11.After that answer the Tribunal noted in its reasons what it said at the hearing (the transcript of which is in evidence):

   “I indicated to the Applicant that whether I accepted this would depend on whether I believed him and at that point I had difficulty in accepting that he had been involved in political activities in Sudan as he claimed, that he had been arrested as he had claimed, that he had obtained his release in the manner he had suggested, that his life had been threatened in the UAE as he had claimed or that the newspaper he had produced was genuine. I noted that if I did not find his evidence credible it would be difficult for me to accept the evidence of his brother, Mr Sharief or the Sudanese Community Association of Victoria.”

   12.At the end of the hearing the Tribunal gave 14 days for the applicant’s representative (who was not at the hearing) to make further written submissions.  While such submissions were later made, they were not at all responsive to the concerns expressed by the Tribunal and were made pro bono.’

3. The present appeal arises out of the treatment by the Tribunal of the article in the Arabic language newspaper, Al Muharir.  The Tribunal disposed of the matter as follows:

   ‘Finally there is the purported newspaper which the Applicant produced containing an article which quotes him as a refugee in Australia.  The Applicant said that he had not printed the article and he did not have anything to do with the article.  He said that he had not given any interviews since he had been in Australia identifying himself as a refugee.  He referred to the evidence of his friend, Mr Sharief, to the effect that he had been approached by two people saying they were friends of the Applicant but who were from the security forces and he said that he believed that these two people had had something to do with the newspaper article.  He suggested that the Sudanese Government had wanted his family to be ashamed of him, as someone who was against the Sudanese Government and who was outside the country.  However, as I put to the Applicant, his family already knew that he was against the Sudanese Government and that he was outside the country because they had helped him to escape.  If the Applicant has given no interviews identifying himself as a refugee and there is no obvious reason for the Sudanese Government to have published an article purporting to quote the Applicant as a refugee in Australia the logical conclusion is that the newspaper is not genuine, as I put to the Applicant.’

4. The appellant asserts that the Tribunal found that the newspaper Al Muharir did not exist.  Before Finn J, he produced copies of different editions of the relevant newspaper in order to demonstrate that it did.  In our view, however, it is clear that the Tribunal merely found that the document produced to it was not part of a genuine edition of that newspaper or a copy thereof.  For the purposes of the proceedings at first instance, Finn J assumed that the document was genuine, and that the Tribunal had erroneously concluded to the contrary.  However his Honour considered that such error was not a jurisdictional error.

5. The Tribunal’s view that the newspaper was not genuine was based upon the absence of any explanation as to how a newspaper published in the Sudan came to refer to a statement by the appellant and to identify him as a refugee in Australia.  The appellant denied that he had given any interview which could have been the basis of the article.  His only explanation was that the Sudanese government had caused the publication of the article to shame his family.  The Tribunal was clearly unimpressed by this explanation.  We can understand the scepticism exhibited by the Tribunal concerning the article.  We are not convinced that any factual error has been demonstrated.  In any event we agree with Finn J that any such error would not be a jurisdictional error.

6. The appellant submits that the finding concerning the newspaper was of such importance in the case that it should not have been made on the evidence as it was.  It is submitted that the finding undermined the appellant’s credibility generally.  We are inclined to accept that it may have done so to some extent.  In this respect we differ from the view expressed by Finn J.  However it is clear that the Tribunal considered every aspect of the appellant’s case.  The newspaper aspect was by no means the most important of them.  There was reason to doubt the authenticity of the newspaper.  It was for the Tribunal to give that matter the weight which it thought appropriate.  We do not accept that any error attended the Tribunal’s approach in this regard.

7. It is also submitted that the Tribunal ought to have conducted investigations as to the authenticity of the newspaper.  It is clear that the Tribunal made known to the appellant its concerns about that subject and invited him to make appropriate submissions.  However, as we have pointed out, this was by no means the most important aspect of the appellant’s case.  In argument it was suggested that the Tribunal could have referred to the newspaper’s website.  This assertion appears to have been based upon the assumption that the newspaper in question was roughly equivalent to a major metropolitan newspaper in Australia or the United States.  There is no evidence that this was the case.  In any event, one is inclined to expect that there may be difficulties in conducting such an investigation in connection with a foreign language newspaper.  We do not see any basis for the assertion that the Tribunal was obliged, itself, to conduct enquiries as to the authenticity of the article.  

8. Finally, it is submitted that the Tribunal failed to appreciate the possibility that if it were wrong in its view of the facts, the appellant might be exposed to persecution upon his return to the Sudan.  However the Tribunal directed itself as to the appropriate test by reference to the decision of the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576 and associated cases. The Tribunal did not accept the appellant’s account of the circumstances which, he claimed, led him to fear persecution. It seems not to have harboured doubts concerning such rejection. Thus there was no basis for the complaint that it should have speculated about the consequences of any error in its findings.

9. The Tribunal formed an adverse view of the appellant’s credibility, which view was based upon various aspects of his evidence as measured against available country information.  Its view as to the authenticity of the newspaper article may have affected its view of the appellant’s credibility generally, but there is no reason why the Tribunal should not have so used that aspect of the evidence.  In any event, the Tribunal considered the other claims made by the appellant individually and assessed them, having regard to all of the evidence.  In those circumstances we do not think it correct to assert, as the appellant effectively does, that the finding concerning the newspaper was critical to the whole of the Tribunal’s disposition of the matter, and that rejection of it necessarily led to rejection of his application.

10. No jurisdictional error is demonstrated, nor was there any misunderstanding by the Tribunal of the correct approach to its task.  In those circumstances the appeal should be dismissed with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Dowsett and Lander.

Associate:

Dated:            2 September 2005

Counsel for the Appellant:	Mr M Clisby
Solicitor for the Appellant:	Mr Clisby
Counsel for the Respondent:	Ms S Maharaj
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	17 August 2005
Date of Judgment:	2 September 2005