SZAJT v Minister for Immigration
[2004] FMCA 99
•8 March 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAJT & ANOR v MINISTER FOR IMMIGRATION | [2004] FMCA 99 |
| MIGRATION – Review of RRT decision – where Tribunal found that the applicant was not a credible witness due inconsistencies in applicant’s claims– whether Tribunal took into account irrelevant considerations in reaching its decision – whether there were sufficient grounds for the Tribunal to make adverse finding of credibility. |
Federal Magistrates Court Rules 2001 Part 11 Rule 11.11
NACR v Minister for Immigration [2002] FCAFC 318
Re MIMA; Ex parte Durairajasingham [2000] 168 ALR 407
W148/00A v MIMIA [2001] FCA 679
NAOC v Minister for Immigration [2003] FMCA 588
| First Applicant: | SZAJT |
| Second Applicant: | SZAJU |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 590 of 2003 |
| Delivered on: | 8 March 2004 |
| Delivered at: | Sydney |
| Hearing date: | 25 February 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Counsel for the Applicant: | Mr S Churches |
| Solicitors for the Applicant: | Michaela Byers, Solicitors |
| Counsel for the Respondent: | Mr R Bromwich |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
First applicant to pay respondent’s costs in the sum of $4,750.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 590 of 2003
| SZAJT & SZAJU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicants in this matter are an Indonesian woman and her son who is a minor. They arrived in Australia on 29 June 2000. On 28 July 2000 they lodged applications for protection (Class XA) visas with the Department of Immigration & Multicultural & Indigenous Affairs. On 29 November 2000 a delegate of the Minister refused to grant protection visas and on 29 December 2000 the applicants applied for review of that decision. On 28 September 2001 the Tribunal wrote to the mother advising her that it had looked at all the material relating to her application but was not prepared to make a favourable decision upon this information alone. The letter invited her to a hearing. The applicant attended a hearing on 26 November 2001. On 23 August 2002 the Tribunal determined to affirm the decision not to grant protection visas and handed down that decision on 13 September 2002.
As the second applicant is a minor I ordered that the first applicant be appointed his litigation guardian pursuant to Part 11 Rule 11.11 of the Federal Magistrates Court Rules.
In a letter written by the applicants’ migration agent dated 27 July 2000 to the Department [CB 1-3], the integers of the applicants’ claim were set out:
“The applicant was born in Tuling Agung, East Java. She was brought up to be a devout follower of Islam Jama’ah (IJ).
After completing her secondary studies in 1988 and on the suggestion of her uncle M. Juwito, she went to study IJ further at Pondok Pesantren Lemkari, Kertosono for three years.
The IJ leader H. Moh. Soweh then sent the appliant to spread the word of IJ at the All Mubarak Mosque, Balikpapan.
In January 1993, the applicant returned to live with her parents and on 28 August 1994, she married her husband Hartadi. After her husband left Indonesia to seek protection in Australia, the applicant taught the Koran in her village of birth, Tuling Agung. She had about 30 students aged between 5 and 10 years old. Local villages became angry with the applicant’s activities as they believe IJ is a cult religion and dangerous. Unfortunately, on 21 April 1999, she was investigated by a man named Dedag from the Department of Religion. He demanded that the applicant give up teaching IJ as IJ is banned by the government. As a result most of the students’ parents withdrew their children and they hated the applicant very much. Some of the parents complained the police about the applicant’s activities. The police wanted to detain the applicant. On 28 August 1999, she fled to Balikpapan. As she was known by the local police, her uncle advised her to go to Jakarta. On 20 February 2000, she went to Jakarta with her son and left her daughter with her parents. She was very depressed and fearful of her situation. The applicant’s friend Hapsoh and her husband helped the applicant to apply for a passport and Australian visa and fled Indonesia with her son on 28 June 2000.
The applicant’s fears are based on the convention ground of religion – Islam Jama’ah. In the current political and economic climate in Indonesia different Islamic organisations are vying for power. IJ’s base is in East Java, the same area as the stronghold of President Wahid’s Nahdaltul Ulama (NU) that boasts having 30 million members. Since the fall of the Suharto era, IJ and NU members have come into confrontation on a number of occasions. Each time NU members demand that IJ members give up their religion and practice mainstream Islam. Sometimes they become violent and destroy IJ mosques and houses. IJ members are no longer free to practice their religion in Indonesia.”
The applicant provided evidence to the court that IJ was a banned organisation in Indonesia [CB 32 – 37]. She also called as a witness a person (now living in Australia) who she knew when she was living in Jakarta. In her response to hearing invitation form found at [CB 62-63] she names the witness and says in response to the question “What evidence will the witness give about your application?” the following:
“He knew that I was searched by policemen regarding my believe/religion while I was in Jakarta.”
The decision of the Tribunal rested squarely on its views about the applicant’s credibility. The Tribunal doubted that the applicant was involved as she claimed with Islam Jama’ah. The Tribunal’s independent evidence indicated that there was one attack upon three people associated with that sect in December 1998 whereas the applicant had said that IJ and NU members have come into conflict on a number of occasions. The Tribunal found it difficult to accept that she had studied for three years at an IJ school after completing her secondary education with thousands of other IJ students when the organisation was effectively banned. The Tribunal found her responses to questions about the religion to be superficial and not of the quality that it would have expected from someone who claimed to be as learned as the applicant did. The Tribunal was perplexed that people in her village knew that she was with IJ but they did not know that her parents were when her evidence was that they had been devout.
The Tribunal noted that the applicant said that teaching which she had done in Tulung Agung was the first teaching which she had done when she had previously claimed that she had also taught in Balikpapan. The Tribunal did not accept her evidence that she had forgotten about this. In respect of the most serious claims arising from police interest in her after her teaching at Tulung Agung the Tribunal said at [CB 87]:
“She said she was questioned on 21 April 1999. She said that she received a summons afterwards. The applicant was confused about how long it was between her interview at the religious affairs department and the issue of the summons and between that and her departure for Balikpapan which she had submitted was on 28 August 1999. I found very unconvincing her claim that she burned the summons as soon as she read it “to protect herself”. She mentioned that it was a few days or not more than a month after receiving the summons before she left for Balikpapan but her evidence indicated that some four months passed and it was not until I pointed this out that she said she had gone into hiding. In my view this was a fabricated claim invented on the spur of the moment. I do not accept the police in Tulung Agung transmitted information about the applicant to the police in Balikpapan as the applicant claims her uncle learned had occurred.
There then follows two further paragraphs which are also the subject of complaint from the applicant:
“The applicant’s evidence about her time in Jakarta also included elements which I consider to be untrue. She said that she stayed indoors for the whole time and did not even go to the shop whereas the witness who gave evidence on her behalf and at her request, Mr W, said that she had often gone at night to the Islam Jama’ah centre near where they lived and then that she went our infrequently and that he had meant she had gone out infrequently other than at night. Mr W knew nothing of the applicant having come to harm in Jakarta and the applicant made no claims that she did and in this context the comment on the form about her having been searched by police in Jakarta is perplexing. The applicant said that Mr W was a member of Islam Jama’ah but he said he was not. The applicant sought to explain this significant discrepancy by saying that he had joined Islam Jama’ah since coming to Australia, something I would have thought Mr Wibisono would have been able to recall when asked directly if he was a member of the sect.
The applicant stated in her protection visa application that she had lived in Aceh from 1991 until 1994 but it was clear from her claims which accompanied her evidence and from her evidence at the hearing that this was a mistake. She claims that her husband was with Aceh Merdeka. Notwithstanding her evidence that she knew little about her husband’s involvement, I found aspects of the applicant’s evidence about her husband’s association with Aceh Merdeka and the implications this had to be not credible. It is very curious that the applicant’s husband would have been recruiting members for Aceh Merdeka east Java as the applicant claims he was. I consider that her account of him having gone to Malaysia for three years after they were married is not truthful: her explanation for her son’s birth in the middle of this period – that there had been a mistake in the birthdate of her son and he was six, not five, at the time of the hearing – was completely unconvincing. I do not accept that the applicant’s husband was away from Indonesia for the period claimed.”
The applicant was represented by Mr Churches of Counsel. He had prepared an Amended and a Further Amended Application and there was also accepted into evidence a transcript of the hearing before the Tribunal. The Amended Application stated that the Tribunal relied upon irrelevant considerations in coming to a conclusion against the applicant. In his submissions Mr Churches said to me that the Tribunal’s decision on credibility rested upon three grounds. He stated that the Tribunal had implicitly found that the applicant had no well founded fear of persecution in Indonesia for reasons of religion on the basis that her lack of credibility left her testimony too weak to support her claim as to membership of IJ with the sequelae of persecution claimed to have followed in the train of such membership. Mr Churches said that the lack of credit was said to rest on three incidents:
i)The summons the applicant claimed was issued to her;
ii)Her husband’s time in Malaysia because of his Aceh Merdeka activities;
iii)The applicant’s time in Jakarta.
He argued that notwithstanding these findings the very core of her claim of fear had remained intact, that core being what he described as the “untouched and consistent material that she was in fear of what the authorities might do to her as a teaching member of IJ.”
Mr Churches puts his argument in his written submissions in the following way:
“4. As to (i), the transcript of the hearing conducted by the Tribunal contains the questioning relevant to this matter at ppp26-28. The issue at stake is the Tribunal’s belief that the applicant received a summons from the police in respect of her religious affiliation with the sect IJ. The one clear date that emerges from the transcript on this point is that the applicant fled to Balikpapan on 28 August 1999, that being her wedding anniversary (transcript pp 7.3, 27.5). However, the applicant’s story of attracting police attention in April 1999 through her teaching IJ religious instruction to children, and her fleeing to Balikpapan in August 1999 remained consistent through her hearing and in the letter written on her behalf by her solicitor to the Department on 27 July 2000 CB2.4-6”
The difficulty which I have with this submission is that a close reading of the transcript indicates that the applicant was questioned about the receipt of the summons and the dates. It was put to her that there was no mention of a summons or her destruction of it in her original submissions. The Tribunal is entitled to take her responses into account and come to a conclusion that she fabricated the claim about receipt of the summons and her having burnt it. The affect of this finding is not to deny that she left Tulung Agung and went to Balikpapan; it is to weaken the applicant’s claim to have been persecuted because of her activities in teaching children in Tulung Agung.
The submissions made by Mr Churches in regard to the evidence concerning the applicant’s husband is briefly stated:
“6 The evidence before the Tribunal regarding the applicant’s husband appeared in the transcript as PP10-13. The husband’s claim is not part of the applicant’s claim and what the applicant had to say about her husband was based on what her husband had told her. To then turn on the applicant and proclaim her lacking in credit for telling what she knows only second hand is illogical at the best.”
It seems to me that the Tribunal’s complaint about the applicant’s evidence concerning her husband was that it lacked credibility for a number of reasons. The most directly, so far as the applicant is concerned, was that she stated that the husband was away for a period of approximately three years during the middle of which she had her son. This could not be possible and the applicant was required to change the date of birth of her son from the date placed in his passport (and in her application for a protection visa and copied into various other documents found in the Court Book) to a date a year earlier. She had to apologise to the Tribunal for telling it that her son was five when he was in fact six. I have little doubt that it would have been possible for another Tribunal to have accepted the applicant’s change of story as reflecting the true situation but the fact that this Tribunal did not is not a reason for impugning its decision. The Tribunal came to its own view about the applicant’s credibility which really had nothing to do with the movements of her husband but more to do with the manner in which she had rehearsed them. The remarks concerning the Tribunal’s lack of belief that the husband was involved with Aceh Merdeka were, to my mind, unnecessary and it is unfortunate that the Tribunal’s more considered view of the whole of her evidence in relation to this set out in the first paragraph on [CB 88] is distilled into the following statement in the second paragraph:
“The applicant’s demonstrated untruthfulness at the hearing in relation to matters concerning the summons she claimed was issued to her, her husband’s time in Malaysia because of his Aceh Merdeka activities and her time in Jakarta has had a very negative affect on my assessment of her credibility.”
I think the Tribunal’s reasons must be read as a whole and if one does that it is clear that there were grounds upon which it could have come to adverse views about her credibility from her responses to questions put at the interview and previously referred to.
The third leg of the Tribunal’s finding on credibility related to the applicant’s time in Jakarta and in particular to the Tribunal’s findings concerning the evidence of her witness Mr W. The applicant complained that the Tribunal had taken literally her reason for asking Mr W to give evidence. She complained that the Tribunal had found that she lacked credibility because Mr W had not confirmed that she had been searched in Jakarta. I don’t think that the transcript bears this out. The Tribunal questioned Mr W in a non leading way in an endeavour to see whether or not he was going to make the point suggested by the applicant. He did not do so. The applicant says that what she really meant was that Mr W could give evidence that she had told him in Jakarta that she had been sought by the police in East Java and Balikpapan [T38]. I accept Mr Churches’ submission that at
[T37- 38] the Tribunal appears to be stressing a literal view of the hearing application form. If Mr W had said something along the lines suggested by the applicant and that had been ignored by the Tribunal a possible error (although not necessarily a jurisdictional error), could be said to have occurred. But the transcript at [ T35] provides the applicant with no such assistance:
“Q. Is there anything bad that happened to the applicant in Jakarta that you know about?
A. No, not as far as I know. She came to Jakarta because she was afraid of things that had happened in her region.
Q. Do you know what those things were?
A. It was, there was an article in the paper which mentioned that some people, some members of Islam Jama’ah in that area were killed.
Q. That was quite a while ago wasn’t it?
A.Well that sort of thing happened often but I think it was 1999.”
The Tribunal then asked the witness twice whether there were any other things but the answers did not refer to the police looking for the applicant in East Java.
I think the Tribunal was entitled to come to the view from this exchange that Mr W had (to use a lawyer’s term) “not come up to proof” and that this entitled him to doubt the credibility of the person who said that he could provide evidence that would have corroborated her claim.
Mr Churches relies on what was said by Lee J in his dissenting judgment in NACR v Minister for Immigration [2002] FCAFC 318:
“Minds may differ as to whether the material identified by the Tribunal as the grounds for not accepting those parts of the appellant’s claims was in any degree significant. As a matter of law adverse determinations on credibility based on speculation or conjecture and not on material on which such a conclusion is reasonably open may vitiate the ultimate determination of the Tribunal. Further, it may be said that minor inconsistencies or admissions that reveal nothing about the grounding of an appellant's fear for his safety are not an adequate basis for an adverse credibility finding against an applicant for asylum. (See: Gao v Attorney General of the United States (2002) 299 F.3d 266 (U.S. Court of Appeals for the Third Circuit)”
I would not wish to cavil with His Honour’s views. But I am not prepared to find that the Tribunal’s determinations on credibility in this case were based upon speculation or conjecture and not on material on which such a conclusion was reasonably open. I think that in all three cases the findings were reasonably open to the Tribunal even if another Tribunal might have come to different findings. As had been said many times:
“A finding on credibility which is the function of the primary decision maker par excellence.” Re MIMA; Ex parte Durairajasingham [2000] 168 ALR 407 at [67] per McHugh J.
Or that:
“A finding as to credibility is a finding of fact and, as the authorities indicate, the reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding.” W148/00A v MIMIA [2001] FCA 679 per Tamberlin and R D Nicholson JJ at [64].”
The applicant made a further claim in her amended application:
“[2] The Tribunal decision was an improper and/or an unreasonable exercise of the power conferred by ss 414 and 415 of the Migration Act 1958.
Particulars
The three contentious issues have all been handled by the Tribunal in a manner which is unreasonable in the context of the human rights of the applicant at stake and the finding of lack of credit and consequent refusal of a favourable finding on the key claims lacked the necessary justification in a human rights context."
These matters were raised by Mr Churches on behalf of the applicant in NAOC v Minister for Immigration [2003] FMCA 588. At [9] I said:
“It seems to me that the very points made by the applicant were made by Kirby J in his dissenting judgment in Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 at [150] and [170]. But his Honour was not in the majority in that case, where the majority made it clear that a modified version of Wedsnesbury unreasonableness cannot attach to cases which are concerned with finding jurisdictional facts but only to those involving the supposed exercise of discretion. (see S20/2002 at [73] per McHugh and Gummow JJ and [174] per Callinan J.”
For the reasons given above I am unable to see any grounds upon which I can grant review of the decision of the Tribunal in this case. I dismiss the application. I order that the applicant pay the respondent’s costs which I assess in the sum of $4,750.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: