SZAJC v Minister for Immigration - [2004] FMCA 51

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAJC v MINISTER FOR IMMIGRATION

[2004] FMCA 51

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Colombia – adverse credibility findings by the RRT – procedural fairness – whether the applicant was denied the opportunity to comment on credibility concerns held by the RRT about a critical element of his claim considered – the applicant did have that opportunity – no reviewable error found – application dismissed.

Migration Act 1958 (Cth), s.65

Abebe v Commonwealth of Australia (1999) 162 ALR 1
Giraldo v Minister for Immigration [2001] FCA 113
WACO v Minister for Immigration [2003] FCAFC 171

Applicant:

SZAJC

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ545 of 2003

Delivered on:

4 February 2004

Delivered at:

Sydney

Hearing date:

4 February 2004

Judgment of:

Driver FM

REPRESENTATION

Solicitors for the Applicant:

Ms Stanton, appeared with leave

Counsel for the Respondent:

Mr J Smith

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ545 of 2003

SZAJC

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 26 April 2002 and handed down on 22 May 2002. The RRT affirmed a decision of a delegate of the Minister not to grant protection visas to three applicants, an applicant father, an applicant mother and their son. The relevant claims were made by the applicant father. The mother and son made claims based on their association with the father. The only applicant in the proceedings before me is the applicant father. However, if I were to grant his application and require the RRT to re-hear his protection visa application that would logically create a need for the subsidiary applications to be dealt with again also.
The relevant background facts are dealt with in written submissions prepared by Mr Smith on behalf of the Minister in paragraphs

3 through to 8 of those written submissions. I adopt those paragraphs for the purposes of this judgment:
The applicant is a citizen of Colombia who arrived in Australia with his son on 21 December 1999. The applicant and his son lodged an application for a protection visa on 24 January 2000. A delegate of the respondent refused to grant the visa on 18 February 2000 and the applicant applied to the RRT for review of that decision. On 14 May 2000 the applicant’s wife arrived in Australia and lodged an application for a protection visa on 19 June 2000. That application was unsuccessful and the wife applied to the RRT for review of that decision. The RRT prepared one statement under s.430(1) in relation to both applications for review and handed down its decision on 22 May 2002.
The applicant’s claims were, essentially, that he feared persecution for reasons of political opinion. The applicant was involved in a group giving welfare assistance to people who had been forced to leave their lands by the militant forces known as FARC. As a consequence of this, the applicant claimed that he had received death threats against him and his family. The applicant (and his wife) also claimed that they feared that they would be targeted by FARC because of their membership of a political party, Century 21.
The decision
The RRT accepted that the applicant had been involved in a social welfare group but did not accept that he had received any death threats. The reasons for this were that the information available to the RRT showed that FARC was a highly trained outfit that did not hesitate to execute and kidnap civilians and that this was inconsistent with the fact that the applicant and his family had not been harmed at all. In particular, the RRT noted that the applicant continued with his activities until October 1999, lived continuously at his address (known to FARC) until he departed for Australia in December and continued to work until his departure. The RRT concluded that the applicant had fabricated these claims to give himself the profile of a refugee.
The RRT also rejected the claim that the applicant was a member of a political party. The claim was made late, and the document in support of the claim asserted that he was an active member up to 2002 whereas the applicant otherwise said that he had not been politically active since arriving in Australia.
The RRT considered the claims made by the son on the basis that he claimed to fear persecution as a member of a particular social group, namely his family. However, having rejected the central claims of the father, the RRT was not satisfied that the son had a well-founded fear of persecution on this basis.
The RRT considered the claims of wife on the same basis as the son as well as on the basis of her membership of a political party. It rejected her application on the same basis as her son and, in respect of the political party, on the same basis as the applicant.
The applicant proceeds today on the basis of an amended application filed on 2 February 2004 and written submissions filed on the same day. The applicant was represented today by Ms Stanton, who appeared by leave. Ms Stanton is a migration agent and a legal practitioner but leave was required, given her current restricted practising certificate.
The amended application asserts that the RRT exceeded its jurisdiction and erred in law in consideration of the protection visa applications. The following particulars are provided:
(1)Subparagraph 65(1)(a)(ii) of the Migration Act 1958 (Cth) (“the Migration Act”) required the RRT in respect of the primary application to make a determination as to whether criteria for the grant of the visa prescribed by the Act or the regulations made thereunder was satisfied.
(2)Section 248 of the Act required the RRT to review the primary decision, and to that end s.349 of the Act vested the RRT with all of the powers and discretions conferred by the Act on the respondent tribunal.
(3)The primary application for protection visas made to the RRT by the applicant on or around 24 January 2000 was rejected by a decision of a delegate of the respondent on 18 February 2000. The applicant sought review by the RRT. On 26 April 2002 the RRT made a decision to affirm the decision of the respondent Minister. That decision was infected with error and consequently the RRT acted contrary to law resulting in a constructive failure to exercise jurisdiction.
(4)The RRT failed to correctly interpret and apply the law and asked itself the wrong question. The RRT failed to understand the absence of a requirement that the applicant has experienced physical harm in the definition of "refugee" in Article 1A(2) of the 1951 Convention relating to the status of refugees and asked itself only what physical harm had the applicant suffered.
(5)The RRT failed to take into account a relevant consideration and to accord natural justice. The RRT failed to take account of or to take steps to satisfy itself of the steps taken by the applicant to protect himself upon receiving death threats.
(6)The RRT failed to take into account a relevant consideration and made a decision that was unreasonable. The RRT based its finding on an assumption that the guerilla group FARC always carry out their threats, failing to take into account evidence contrary to this.
(7)The RRT failed to take into account a relevant consideration. The RRT failed to consider the psychological harm which was inflicted on the applicant and his family by FARC.
(8)The RRT failed to take into account a relevant consideration and misunderstood the evidence. The RRT failed to consider the evidence of Mr Zarate in relation to the applicant's claim as a result of his social activities as opposed to his political affiliation.
(9)Lack of evidence: there was no evidence before the RRT to support its finding that the applicant was not a reliable witness or that any threats made by FARC would for certainty be carried out.
(10)As the purported decision of the RRT was infected with error, the RRT did not have the jurisdiction to make such a decision. Consequently, the purported decision was not a decision for the purposes of the definition of a privative clause decision under s.474 of the Migration Act and therefore not such a private clause decision.
These grounds are elaborated upon in the applicant's written submissions. In particular, reference is made to the RRT’s reasoning on page 18 of the decision and reasons (court book, page 139). The presiding member stated:
The Tribunal also notes that despite his claims that he was considered a “traitor” and a “military” target and was threatened with death by FARC, [the] applicant was never physically harmed from the time he began his social welfare activities until he departed from Colombia in December 1999 - ten months.
Later on the same page, the presiding member states:
No harm whatsoever came to the applicant between April 1999 and December 1999 when he left the country. If FARC had any genuine interest in harming the applicant they would have done so when he initially refused to obey their order to stop his activities in April or May 1999.
Also on the same page the presiding member states:
…the FARC had ample time in which to locate the applicant [given that they knew where he lived it would not have been difficult] and carry out the claimed threat. Again, as noted above no harm whatever came to the applicant. The Tribunal finds therefore that in this particular case, the applicant has fabricated his claim…
Mr Smith, in his submissions, notes that the RRT decision rested on an adverse credibility finding or findings. He submits that the findings were open to the RRT on the material before it. He notes that essentially the RRT considered that an organisation such as FARC would not have made threats over such a long period without harming the applicant or his family in any way when they knew where the family lived, where his son went to school and how he got there. In addition, the applicant and his family obtained visas for Australia in June 1999, but did not leave Colombia, in the case of the applicant and his son until December 1999, and in the case of his wife, May 2000.
Mr Smith submits that in light of these matters, it was open to the RRT to reject the claims and so affirm the decision of the delegate. Although the challenge to the applicant's decision is put in terms of unreasonableness and a failure to achieve the requisite degree of satisfaction required by the Act in accordance with the Act and also incorrect interpretation of the definition of refugee, it does not appear to me that the RRT adopted any requirement that the applicant must establish physical harm in order to establish that he was a refugee. Rather, the RRT considered the applicant's own evidence that serious threats of harm were made over an extended period with increasing degrees of seriousness in the threats and yet no harm followed.
In the circumstances, it was, in my view, reasonably open to the RRT to conclude that the claimed threats made by FARC against the applicant and his family were not credible. It is, of course, possible that threats were made by FARC without an intention to carry them out. It is also possible that threats were made by FARC with the intention of frightening the applicant in order to induce him to act in a particular way. The RRT, in the matter considered by the Federal Court of Giraldo v Minister for Immigration [2001] FCA 113 adopted reasoning along those lines.
However, the fact that a different decision maker might have reached a different conclusion does not establish an error of law going to jurisdiction. It may be a basis for the applicant to approach the Minister in order to request her intervention to substitute a more favourable decision. On the facts of this matter, it might have been plausible for FARC to have made threats against the applicant in order to induce him to cease his social welfare activities. If that was their intention then the threats were successful because he did, indeed, cease those activities.
However, the applicant went on to assert that FARC then threatened him with death and harm to his family as a traitor. Threats were delivered by hand to his home on the applicant's evidence. It was reasonably open to the RRT to conclude that these assertions were not credible. Bearing in mind that the FARC had ample opportunity to carry out a death sentence against the applicant if, indeed, he had been put under such a death sentence. I find that the application, insofar as it relates to the rejection of the applicant's claims based upon the assessment of FARC and its activities and the absence of physical harm, fails.
The other issue is one of procedural fairness. In the course of rejecting the credibility of the applicant's claims, the RRT placed no weight on letters submitted by the applicant in an attempt to corroborate his claims. Although the applicant's claims of threats made by FARC were discussed with him at the RRT hearing, it is not apparent from the decision and reasons of the RRT that the applicant was given an opportunity to comment on the letters to the extent that the RRT was minded to make adverse credibility findings on them.
The RRT made the following findings of relevance. On page 19 of the reasons of the RRT (court book, page 140), the presiding member states:
The Tribunal has found the applicant to be an unreliable witness, and in light of this finding, it cannot be satisfied that the documents he has submitted to the Tribunal in support of his application are reliable either. The Tribunal cannot [and therefore does not] rely on the letters from FARC or the letter from Mr Jorge Carrero. Regarding the latter, the Tribunal notes that the author of this letter [Mr Carrero] is himself an applicant for asylum [in New Zealand], and in the Tribunal's view it would have been a relatively straightforward matter for the applicant to contrive this letter by giving the author instructions in relation to what he should write, and further, given their interdependent claims, it would be in the author's own interest to write such a letter thereby giving collective credence to their assertions. With regard to the statement from Ms Julia Rodriguez and the letter [facsimile] from the applicant's wife dated 8th February 2000, again, it would be a relatively straightforward matter for the applicant to contrive these letters, by giving the authors instructions in relation to what they should write, and given that the Tribunal does not find that the applicant's claims regarding the threats by FARC to be credible, it cannot rely on these documents. The applicant also submitted a certified translation of a report made by Ms Calderon Canas [undated relating to incident in January 2000] to the Investigations General Office. It is the view of the Tribunal that this document has no value because it would have been a straightforward matter for the applicant to instruct his wife to go to this office and make a false report. The Tribunal finds that given the applicant's lack of credibility in relation to his claims of fearing harm by FARC, it cannot rely on this document and gives it no weight.
On behalf of the Minister, Mr Smith does not concede that the applicant was not given the opportunity to comment on adverse views formed by the presiding member about those documents. I do not have a transcript before me and, in the circumstances, I could not be certain that the applicant was denied an opportunity to comment on the adverse assessment. However, it is open to me to draw an inference from the discussion of what occurred at the RRT hearing in the presiding member's reasons for his decision that, while the applicant was invited to comment generally upon the presiding member's concerns about the credibility of his claims, that opportunity did not extend specifically to the documents in question.
In WACO v Minister for Immigration [2003] FCAFC 171, the Federal Court found a denial of procedural fairness in circumstances where documents that were potentially corroborative of a critical aspect of an applicant's claims were found to be not genuine and where the applicant was denied the opportunity to be heard on that issue. However, the issue needs to be put in its proper context. At paragraph 41 of the decision their Honours stated:
A finding that documents are not genuine might, in a particular case, depend upon factors external to the documents. Direct evidence that a document is a forgery will not always be necessary…
In this matter, there was no finding by the presiding member that the documents were a forgery, but the presiding member either declined to accept them as genuine or placed no weight on them. In addition, there were factors external to the documents, given the presiding member’s finding of a lack of credibility in the applicant's claims of the threats made by FARC. The presiding member found that in the circumstances of the matter before him it would have been a simple matter for the letters to be constructed in order to support the applicant's claims.
In paragraph 42 of the decision in WACO Their Honours state:
The question raised here is whether the Tribunal was entitled to reject a document which on its face was genuine without giving the party which tendered it an opportunity to comment upon the genuineness of the document or to call evidence supporting its genuineness. An administrative tribunal undertaking an inquisitorial function is not obliged to put to an appellant an assertion of apparent falsity or unreliability in respect of each and every matter raised by the appellant for the appellant's comment (Abebe v Commonwealth of Australia (1999) 162 ALR 1 per Callinan J at 76). However, the tribunal will have a duty to raise clearly with the appellant the critical issues on which his or her application might depend. It is clear that the question whether the letters were genuine was a matter which went directly to the most critical issue in the case, namely the appellant's relationship with Ayatollah Shirazi. It was upon this relationship that the claim that the appellant had a well-founded fear of persecution for a convention reason rested.
In this matter, the applicant's claim rested upon his assertion that threats of death or other serious harm had been made to him and his family. I find that the RRT did give the applicant a reasonable opportunity to be heard on that issue and did put to the applicant the RRT’s concerns about the credibility of his claims. The letters, while they provided some corroboration of those claims, were not essential to them.
In the circumstances, if there was no opportunity for the applicant to comment upon the RRT’s credibility concerns about the letters, there was no practical unfairness because the applicant had had an opportunity to comment generally upon the RRT’s credibility concerns about his claims concerning the threats received from FARC.
Accordingly, I find that there was no procedural unfairness in the determination of the application by the RRT. I find that there was no jurisdictional error in the decision of the RRT.
I will dismiss the application.
On the question of costs, the application having been dismissed, Mr Smith seeks an order for costs and has identified costs having been incurred in the sum of $4,000 on a solicitor and client basis. On a party/party basis an award of costs in the sum of $3,000 would be appropriate. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,000.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 19 February 2004