SXBB v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 234

FEDERAL COURT OF AUSTRALIA

SXBB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 234

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

No SAD 224 of 2004

FINN J
ADELAIDE
14 MARCH 2005

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 224 OF 2004

BETWEEN:

SXBB
APPLICANT

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

JUDGE:

FINN J

DATE OF ORDER:

14 MARCH 2005

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the first respondent’s costs.

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 224 OF 2004

BETWEEN:

SXBB
APPLICANT

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

JUDGE:	FINN J
DATE:	14 MARCH 2005
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. The decision of the Refugee Review Tribunal (“the Tribunal”) for which review is sought in this proceeding is testament to the proposition that a tribunal does not commit a jurisdictional error merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound or questionable reasoning:  cf Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 257. Despite factual error and reasoning which is unpersuasive, I am not satisfied that the one matter relied upon in this proceeding as it has been prosecuted reveals jurisdictional error on the Tribunal’s part.

   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 its 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.

    THE TRIBUNAL’S DECISION

13. After outlining the applicant’s evidence which I have précised above, the Tribunal referred first to country information concerning the DUP and then to a Danish fact finding mission report of 2001 which made the “encounter no difficulties” observation of returning Sudanese nationals, “including asylum seekers”.

14. It then indicated the difficulties it had with the applicant’s evidence.  The essence of its conclusions, insofar as presently relevant, are to be found in the following paragraphs:

    “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.

    I acknowledge that the Applicant’s evidence is purportedly corroborated by the letter from his friend Mr Mohamed El Hassan Amin Sharief, by the letter from the Sudanese Community Association of Victoria and by the ‘membership card’ which he produced purporting to be from the ‘Federal Democratic Party’.  However the Sudanese Community Association of Victoria does not state the basis of its knowledge and with respect to all three documents I give greater weight to the problems with the Applicant’s own evidence which I have outlined above (and which I consider outweigh the corroboration afforded by the documents in question) than I do to the documents themselves.  Having regard to the Applicant’s lack of knowledge of the DUP, as outlined above, I do not accept that he was a member of the DUP as he claims.  I do not accept, therefore, that the ‘membership card’ which he produced purporting to be from the ‘Federal Democratic Party’ (assuming that to be a mistranslation of the ‘Democratic Unionist Party’) is genuine.  I do not accept that the Applicant was arrested, detained, beaten and tortured in April 1996 and again in December 1998, nor that on the latter occasion he was detained at the Kober Prison, as he claims.  I do not accept that the Applicant was able to escape from custody in the way he claims to have done nor that he was able to leave the country travelling on a passport in his own name with the assistance of a ‘secret member’ of the DUP.  I do not accept that the Applicant was threatened, harassed and attacked in the UAE nor that after he left the UAE the Sudanese Government put pressure on his employer or the Government of the UAE to cancel his residence permit.  As indicated above, I consider that, if the Sudanese Government had wanted to cut short the Applicant’s stay in the UAE, they could simply have refused to renew his passport.

    Since I do not accept that the Applicant was a member of the DUP or that he was detained as he claims, it follows that I do not accept Mr Sharief’s evidence that when he was in Sudan in 1996-97 he visited the Applicant’s home and found his mother very sad and upset because the Applicant was in ‘politician jail’ or ‘may be chased by the undercover {muslim brothers} [sic]’.  I likewise do not accept Mr Sharief’s evidence that when he returned to Sudan for a holiday in August 2003 he visited the Applicant’s family again and the Applicant’s mother told him that ‘the undercover {MUSLIM BROTHERS}’ were still disturbing the house asking about the Applicant.  I do not accept that two men who said that they were friends of the Applicant but who were really ‘undercover men’ came to see Mr Sharief and asked about the Applicant.  I likewise do not accept the Applicant’s evidence that his mother told him that three months previously two people whom she thought were undercover police had come to the house asking for him and had told her that it would be better for him if he returned to Sudan, nor that his brother was given the newspaper he produced by someone on a motor cycle typical of ‘the undercover’ motor cycles nor that his brother was told by the person who gave him the newspaper that ‘your brother [is] now in the deathrow’.  For reasons given above, I do not accept that the newspaper is genuine:”  emphasis added.

    THE PRESENT APPLICATION

15. The application and the written submissions filed on behalf of the applicant raised some number of disparate grounds.  At the hearing all save one of these were abandoned.  The one matter that remains in contention related to the alleged error in the Tribunal’s finding that the newspaper article naming the applicant was not genuine (“the newspaper finding”) and to the consequences of that error for the validity of the Tribunal’s decision.

16. For the purposes of the hearing before me the applicant has filed an affidavit in which he swore to the authenticity of the newspaper he provided to the Tribunal and he annexed to that affidavit what he says are further copies of that newspaper of varying dates in early 2004 which were sent to him at his request by Mr Sharief.

17. While not disputing the authenticity of these later copies, the first respondent has not conceded that the particular newspaper provided to the Tribunal which named the applicant was genuine.

18. The precise way in which counsel for the applicant has sought to use the newspaper finding has varied and included that (a) the Tribunal imposed an impermissibly high evidentiary onus on the applicant;  (b) it ought to have otherwise inquired as to the newspaper’s authenticity before making such a finding;  (c) given the finding, the Tribunal was inevitably going to reject the applicant’s credibility;  and (d) the finding was irrational.  How these may have translated into a jurisdictional error such as to invalidate the Tribunal’s decision was not explained.

19. The first respondent’s contentions are that (i) the newspaper finding was independent of the credibility finding which led to the wholesale rejection of the applicant’s claim, and as such was at best no more than a mistake of fact which was not a jurisdictional fact;  (ii) the Tribunal had no duty to inquire itself as to the newspaper’s authenticity;  (iii) the finding did not go beyond the particular copy of the newspaper that was put in evidence at the hearing;  (iv) even if the applicant was characterised in the article as a refugee, the country evidence is that the Sudanese government was encouraging even refugees to return home.

20. I agree with the Minister’s submission that the newspaper finding does stand apart from the general credibility finding.  In par 14 above, I set out three paragraphs from the Tribunal’s reasons.  Where in the last sentence of the third paragraph (which I have emphasised) it says “For reasons given above, I do not accept that the newspaper is genuine”, the Tribunal was referring to the first of the three quoted paragraphs where it dealt discretely with the evidence concerning the newspaper and indicated the logical conclusion was that it was “not genuine”.  It was not relying upon the second paragraph in which it rejected the applicant’s actual claims on credibility grounds.

21. I am prepared to accept for present purposes that the tendered newspaper was genuine.  The article’s naming of the applicant can doubtless be said to be curious given its subject matter, and made the more so by the applicant’s evidence that he had not given any interview identifying himself as a refugee.  Further, the applicant’s speculation about the provenance of the article may have been unsatisfying but it was speculation at the Tribunal’s behest about a matter concerning which he indicated he had no actual knowledge.  Nonetheless, the Tribunal’s conclusion betrays a process of reasoning which seems to owe more to scepticism than to a process of persuasive reasoning.  This said, given that at the hearing it put the applicant on notice that it doubted the genuineness of the newspaper and that it gave the applicant fourteen days to put on further submissions but did not later receive submissions which addressed this concern, I am not satisfied that there can be said to be no proper basis in the circumstances for the finding despite what I have said of the Tribunal’s reasons. 

22. The Tribunal may have made an erroneous fact finding but that fact cannot be said to be one on which its jurisdiction depends.  If it had not made that mistake, it may have been led to a more cautious evaluation of the evidence that it appears to have engaged in.  The mistake may, in consequence, have affected its reasoning more generally.  But not being jurisdictional in character it did not for present purposes infect that reasoning.

23. I equally am satisfied that the circumstances of this matter are not ones that arguably could have given rise to an obligation on the Tribunal’s part to make inquiries as to the genuineness of the tendered newspaper.  It put the applicant on notice of its concern and, from the Tribunal’s standpoint, he was given the opportunity to address that concern.  As his later conduct showed, it was not beyond his power to address the matter.

1. The applicant’s challenge, if quite understandable, does not reveal a basis for invalidating the Tribunal’s decision.

   CONCLUSION

2. I will order that the application be dismissed with costs. 

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate:

Dated:             14 March 2005

Counsel for the Applicant:	M W Clisby
Solicitor for the Applicant:	Mark Clisby
Counsel for the Respondent:	Mr M Roder
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	8 February 2005
Date of Judgment:	14 March 2005